Oscar Juan Delgado-Olmos v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSCAR JUAN DELGADO-OLMOS,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-1697
Agency No.
A074-826-503
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 27, 2024**
Pasadena, California
Before: RAWLINSON, LEE, and BRESS, Circuit Judges.
Oscar Juan Delgado-Olmos, a native and citizen of Mexico, petitions for
review of a Board of Immigration Appeals (BIA) decision dismissing his appeal
from an Immigration Judge (IJ) order denying his request for an adjustment of status.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
MAR 29 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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We have jurisdiction under 8 U.S.C. § 1252. We deny the petition.
Delgado-Olmos does not challenge the grounds upon which the IJ and BIA
concluded he was ineligible for adjustment of status. In his petition for review,
Delgado-Olmos instead contends that he is not subject to the permanent bar on
admissibility, 8 U.S.C. § 1182(a)(9)(C)(i), because he qualifies for an exception
under 8 U.S.C. § 1182(a)(9)(C)(ii). Specifically, Delgado-Olmos maintains that he
has legally been present outside the United States for the required ten years because
his parole into the United States in 2013 did not affect his legal status. Under
Delgado-Olmos’s theory, his physical presence in this country during his parole is
irrelevant for the purposes of time accrual under § 1182(a)(9)(C)(ii).
Delgado-Olmos concedes that he did not raise this theory before either the IJ
or the BIA. Under 8 U.S.C. § 1252(d)(1), an alien must “exhaust[] all administrative
remedies available to the alien as of right.” Although this provision is not
jurisdictional, it is a mandatory claims-processing rule that we must enforce if the
government properly raises it. See Santos-Zacaria v. Garland, 598 U.S. 411, 417–
19 (2023); Umana-Escobar v. Garland, 69 F.4th 544, 550 (9th Cir. 2023), as
amended.
To exhaust his argument, Delgado-Olmos must have raised the issue in such
a way that was “sufficient to put the BIA on notice of what was being challenged.”
Bare v. Barr, 975 F.3d 952, 960 (9th Cir. 2020) (citation omitted). “What matters is

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that the BIA was sufficiently on notice so that it ‘had an opportunity to pass on this
issue.’” Id. (quoting Zhang v. Ashcroft, 388 F.3d 713, 721 (9th Cir. 2004) (per
curiam)). In this case, and although the IJ and BIA stated that the exception in
§ 1182(a)(9)(C)(ii) did not apply, they did not consider Delgado-Olmos’s current
argument because he did not raise it before the agency. Because Delgado-Olmos
did not provide the BIA with an opportunity to pass on his theory, the mandatory
claims-processing rule of 8 U.S.C. § 1252(d)(1) applies. We thus do not consider
his new theory further.
Our decision is without prejudice to Delgado-Olmos seeking to raise his new
theory before the BIA in a proper motion to reopen or through another appropriate
mechanism.
PETITION DENIED.1
1 We deny Delgado-Olmos’s motion to stay removal. Dkt. 3. The temporary stay
of removal shall remain in place until the mandate issues.

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