Cuevas-Nuno v. Barr
Citation | 969 F.3d 331 |
Decision Date | 07 August 2020 |
Docket Number | No. 20-3034,20-3034 |
Parties | Alain CUEVAS-NUNO, Petitioner, v. William P. BARR, Attorney General, Respondent. |
Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
ON BRIEF: Peter Constantine M. Maniatis, SAENZ & MANIATIS, PLLC, Nashville, Tennessee, for Petitioner. Sarah A. Byrd, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Before: ROGERS, KETHLEDGE, and NALBANDIAN, Circuit Judges.
The Immigration and Nationality Act makes clear that parties must exhaust their claims with the Board of Immigration Appeals before we can review them. This gives the Departments of Justice and Homeland Security "a full opportunity to consider a petitioner's claims, [and] avoid[s] premature interference with the agenc[ies’] processes[.]"
Ramani v. Ashcroft , 378 F.3d 554, 559 (6th Cir. 2004) (citation omitted). Alain Cuevas-Nuno failed to administratively exhaust each of the claims he brings before us. So we DISMISS his petition for lack of jurisdiction.
Cuevas-Nuno, a native of Mexico, entered the United States illegally on an unknown date. In 2012, the Department of Homeland Security ("DHS") charged Cuevas-Nuno as subject to removal from the United States, under 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the United States without being admitted or paroled. It personally served him with a notice to appear that included the following warning:
Failure to appear at your hearing except for exceptional circumstances may result in ... [y]our hearing [ ] be[ing] held in your absence[.] ... [And a]n order of removal will be entered against you if the [DHS] establishe[s] by clear, unequivocal[,] and convincing evidence that a) you or your attorney has been provided this notice and b) you are removable.
(AR 132–33.) Cuevas-Nuno attended his first master hearing, admitted the allegations against him, and conceded removability as charged. He then applied for cancellation of removal and made a successful motion to transfer his case from Virginia to the Immigration Court in Memphis, Tennessee. That court set Cuevas-Nuno's next master hearing for October 4, 2017 and sent a notice of the hearing to Cuevas-Nuno's counsel of record.
Cuevas-Nuno did not attend his second hearing. So the Immigration Judge conducted an in absentia hearing, found Cuevas-Nuno's cancellation of removal application abandoned, dismissed it for lack of prosecution, and ordered Cuevas-Nuno removed to Mexico. Sixteen days later, Cuevas-Nuno moved to reopen. In support of this motion he attached an affidavit, where he declared: "I missed my Master Calendar Hearing on October 4th, 2017 in Tennessee Immigration Court because I became confused about the date of my hearing." (AR 68.) DHS opposed this motion, arguing that an Immigration Judge can only reopen an in absentia removal order if the alien shows that his failure to appear was because of "exceptional circumstances" as defined by statute and regulation; and confusion about the hearing date is not an exceptional circumstance. The Immigration Judge agreed and denied Cuevas-Nuno's motion to reopen, finding this court's decision in Acquaah v. Holder , 589 F.3d 332 (6th Cir. 2009), controlling. The Immigration Judge also denied Cuevas-Nuno's motion because he failed to attach his application for cancellation of removal or any other evidence of his eligibility for cancellation of removal, as required by 8 C.F.R. §§ 1003.2(c)(1), 1003.23(b)(3).
Cuevas-Nuno then appealed to the Board of Immigration Appeals ("BIA"). In a three-page brief he raised only one argument: That the Immigration Judge erred in failing to exercise her sua sponte discretion to reopen her removal order because Cuevas-Nuno's confusion about his hearing date constitutes an exceptional situation. The brief attempts to explain Cuevas-Nuno's alleged confusion about his hearing date. It says Cuevas-Nuno told his counsel:
[E]ven though he knew he had a Master Calendar Hearing on October 4, 2017, when he called [counsel's] office to confirm his hearing date and time he was told that his court date was on a different day. Thus, his confusion. [Counsel had] no reasons to believe that he will be [sic] lying about this, and unfortunately the person who was handling immigration clients at the time was discharged from [counsel's] firm around mid-January 2018.
(AR 7.) The BIA found Cuevas-Nuno's argument unavailing and affirmed the Immigration Judge without opinion. This petition follows.
Cuevas-Nuno raises four claims in his petition for review: That his counsel's employee allegedly provided Cuevas-Nuno an incorrect hearing date, and this error (1) constitutes an exceptional circumstance that justifies reopening the Immigration Judge's in absentia removal order under 8 U.S.C. § 1229a(b)(5)(C), (2) amounts to a lack of notice sufficient to reopen the removal order under 8 U.S.C. § 1229a(b)(5)(C)(ii), and (3) violates Cuevas-Nuno's due process right to be heard. His fourth claim is that the Immigration Judge erred by denying Cuevas-Nuno's motion for failing to submit evidence supporting his eligibility for cancellation of removal under 8 C.F.R. § 1003.2(c)(1) because Cuevas-Nuno did not move to reopen so that he could submit an application for relief. But we lack jurisdiction for all these claims.1 We have jurisdiction to "review a final order of removal only if ... the alien has exhausted all administrative remedies available to the alien as of right[.]"2 8 U.S.C. § 1252(d)(1) ; see Hassan v. Gonzales , 403 F.3d 429, 432 (6th Cir. 2005). And in Ramani v. Ashcroft , we interpreted this exhaustion requirement to require precision—it is stricter "than merely requiring an alien to exhaust all avenues of appeal; [it] further require[s] the alien to preserve each claim by presenting it to the BIA." 378 F.3d at 559 (emphasis added).3
We look to the alien's brief before the BIA to determine which claims the alien adequately raised before that body.4 See Hassan , 403 F.3d at 433 n.5 . And Cuevas-Nuno's BIA brief doesn't mention lack of notice under 8 U.S.C. § 1229a(b)(5)(C)(ii), his due process right to be heard, or his failure to submit evidence supporting his eligibility for cancellation of removal. Thus, Cuevas-Nuno failed to exhaust his second, third, and fourth claims.
The brief does argue that Cuevas-Nuno's confusion about his hearing date constitutes an exceptional situation that justifies reopening the Immigration Judge's removal order. Still, the Government argues we lack jurisdiction because Cuevas-Nuno's BIA brief only discusses exceptional situations within the context of its argument that the Immigration Judge erred in failing to exercise her sua sponte discretion to reopen her removal order—not a motion to reopen under 8 U.S.C. § 1229a(b)(5)(C)(i). We agree. It's well settled that we lack jurisdiction to review a BIA decision declining to exercise its discretionary authority to sua sponte reopen a removal order. Rais v. Holder , 768 F.3d 453, 460 (6th Cir. 2014). And that's the only argument Cuevas-Nuno raised before the BIA. Unless it tells us otherwise, we presume the BIA decides appeals based on the arguments presented to it, not arguments neither party raises. See Hassan , 403 F.3d at 433 ( ); Pilica v. Ashcroft , 388 F.3d 941, 949 (6th Cir. 2004) (); Denko v. INS , 351 F.3d 717, 729 (6th Cir. 2003) ( ). So Cuevas-Nuno is asking us to review a BIA decision outside our jurisdiction.
That said, "presenting an issue in a motion to reopen sua sponte is sufficient to exhaust that issue." Gor v. Holder , 607 F.3d 180, 186 (6th Cir. 2010). But Cuevas-Nuno's argument that the incorrect notice his counsel's employee gave him constitutes an "exceptional situation" sufficient for the Immigration Judge to sua sponte reopen her removal order is different from the issue of whether that conduct constitutes an "exceptional circumstance" sufficient to reopen the order under § 1229a(b)(5)(C)(i). The "exceptional circumstances" necessary to reopen under § 1229a(b)(5)(C)(i) are statutorily defined. See 8 U.S.C. § 1229a(e)(1). The BIA, on the other hand, judicially created the "exceptional situation" prerequisite to its discretionary authority to sua sponte reopen removal orders. See In re J- J- , 21 I. & N. Dec. 976, 984 (BIA 1997). And there isn't "any statutory, regulatory, or case law definition" of that term. Bonilla v. Lynch , 840 F.3d 575, 586 (9th Cir. 2016) (quoting Ekimian v. INS , 303 F.3d 1153, 1156 (9th Cir. 2002) ). Finally, in determining its jurisdiction, the Third Circuit rejected the argument that the terms’ meanings are synonymous. Dhanoa v. Attorney Gen. of the U.S. , No. 14-3182, ––– F. App'x ––––, –––– n.4 2015 WL 3514730, at *2 n.4 (3d Cir. June 5, 2015). All in all, the available evidence shows that "exceptional circumstances" and "exceptional situation" don't mean the same thing. So we hold that raising one of these claims before the BIA doesn't exhaust the other.5
It's clear that Cuevas-Nuno and his attorney were on notice of the legal distinction between "exceptional circumstances" and an "exceptional situation" before they filed their appeal with the BIA. In opposition to his motion to reopen before the Immigration...
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