Arsdi v. Eric H. Holder Jr., No. 10–72147.

CourtU.S. Court of Appeals — Ninth Circuit
Writing for the CourtBefore: ALEX KOZINSKI, Chief Judge, DIARMUID F. O'SCANNLAIN and CARLOS T. BEA, Circuit Judges.
Citation659 F.3d 925,11 Cal. Daily Op. Serv. 13076,2011 Daily Journal D.A.R. 15533
Docket NumberNo. 10–72147.
Decision Date24 October 2011
PartiesAlazar Getachew ARSDI, Petitioner,v.Eric H. HOLDER Jr., Attorney General, Respondent.

659 F.3d 925
11 Cal.
Daily Op. Serv. 13,076
2011 Daily Journal D.A.R. 15,533

Alazar Getachew ARSDI, Petitioner,
v.
Eric H. HOLDER Jr., Attorney General, Respondent.

No. 10–72147.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 9, 2011.Filed Oct. 24, 2011.


[659 F.3d 927]

Evangeline G. Abriel, Santa Clara University School of Law, Santa Clara, CA, argued the cause and filed the briefs for the petitioner. With her on the briefs were Neil Banerjee and Maria M. Ciurea, Santa Clara University School of Law, Santa Clara, CA.Aaron R. Petty, United States Department of Justice Office of Immigration Litigation, Washington, D.C., argued the cause and filed the brief for the respondent. With him on the brief were Tony West and Christopher C. Fuller, Department of Justice Civil Division, Washington, D.C.On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A028–129–238.Before: ALEX KOZINSKI, Chief Judge, DIARMUID F. O'SCANNLAIN and CARLOS T. BEA, Circuit Judges.
OPINION
O'SCANNLAIN, Circuit Judge:

We are called upon to decide whether an alien exhausted his administrative remedies in challenging an immigration judge's ruling that he had committed a “particularly serious crime” and therefore was subject to removal from the United States.

I

Alazar Getachew Arsdi is a native and citizen of Ethiopia, who came to the United States with his mother in 2002 at age fourteen and who became a legal permanent resident in 2005.

On February 17, 2006, the seventeen-year-old Arsdi and a school friend robbed Pedro Cervantes and Jesus Lugo at gun point at a local gas station. Arsdi tried to downplay his role during immigration proceedings, but he admitted that he drove the car, held the gun, and collected the spoils. Fortunately, no one was hurt, and Cervantes was able to provide the police with a description both of his attackers and of their vehicle. The teenagers were apprehended before they disposed of the shotgun or Lugo's ATM card.

Although Arsdi was underage and a first-time offender, the state of Arizona charged him as an adult with armed robbery, a Class 2 felony with a presumptive

[659 F.3d 928]

punishment of five years incarceration. Faced with overwhelming evidence, Arsdi pled guilty. In a show of leniency, the state court sentenced Arsdi to only four years imprisonment, the statutory minimum.

On July 24, 2009, the Department of Homeland Security issued a Notice to Appear, charging Arsdi as removable based on his conviction of an aggravated felony. While represented by counsel, Arsdi conceded removability but applied for asylum and withholding of removal.1 The immigration judge (“IJ”) concluded that because his armed robbery was “particularly serious,” Arsdi was statutorily ineligible for such relief.

Arsdi complained to the Board of Immigration Appeals (“BIA”) that the “decision by the [IJ denying him relief] failed to take into consideration several facts.” However, all of the purported omissions related to Arsdi's claim of a well-founded fear of persecution. Not one pertained to whether pointing a pump action shotgun into the faces of two innocent people constitutes a “particularly serious” crime. Concluding that the IJ “considered the testimony and record in full, and did not overlook any evidence,” the BIA adopted the IJ's decision.

II

In timely petitioning for review of the BIA decision here, Arsdi asserts that the IJ failed to apply the appropriate standard to determine whether his crime was “particularly serious.” The government objects that we may not properly consider such a claim because Arsdi failed to raise it before the BIA.

Our jurisdiction to hear Arsdi's claim is subject to the strict limits placed by Congress in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104–208, 110 Stat. 3009 (1996), and the REAL ID Act of 2005, Pub.L. No. 109–13, 119 Stat. 231 (2005). As such, we have jurisdiction to review only if he “has exhausted all administrative remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1). If Arsdi did not exhaust his claim that the IJ applied the wrong standard to determine whether his crime was “particularly serious,” we simply may not review that decision here.

As we have often reiterated, “[i]t is a well-known axiom of administrative law that ‘if a petitioner wishes to preserve an issue for appeal, he must first raise it in the proper administrative forum.’ ” Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir.2004) (quoting Tejeda–Mata v. INS, 626...

To continue reading

Request your trial
47 practice notes
  • Errera v. Holder, No. 10-72835
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 11, 2012
    ...He failed to raise this argument before the BIA or the IJ, and thus, we lack jurisdiction to consider the claim. Arsdi v. Holder, 659 F.3d 925, 928-29 (9th Cir. 2011). Were we to reach the argument, we would deny relief because the claimPage 5that the incomplete form constitutes a denial of......
  • Owino v. Holder, No. 12–71321.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • November 4, 2014
    ...to cross-examine her. Owino failed to raise this claim to the BIA. We therefore lack jurisdiction to consider it. Arsdi v. Holder, 659 F.3d 925, 928–29 (9th Cir.2011); Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir.2009) (en banc).E. The Agency's Inadequate Consideration of the Evidence An ......
  • Owino v. Holder, No. 12–71321.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • November 4, 2014
    ...to cross-examine her. Owino failed to raise this claim to the BIA. We therefore lack jurisdiction to consider it. Arsdi v. Holder, 659 F.3d 925, 928–29 (9th Cir.2011) ; Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir.2009) (en banc).E. The Agency's Inadequate Consideration of the Evidence An......
  • Owino v. Holder, No. 12–71321.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • November 4, 2014
    ...to cross-examine her. Owino failed to raise this claim to the BIA. We therefore lack jurisdiction to consider it. Arsdi v. Holder, 659 F.3d 925, 928–29 (9th Cir.2011); Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir.2009) (en banc). E. The Agency's Inadequate Consideration of the Evidence An......
  • Request a trial to view additional results
47 cases
  • Errera v. Holder, No. 10-72835
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 11, 2012
    ...He failed to raise this argument before the BIA or the IJ, and thus, we lack jurisdiction to consider the claim. Arsdi v. Holder, 659 F.3d 925, 928-29 (9th Cir. 2011). Were we to reach the argument, we would deny relief because the claimPage 5that the incomplete form constitutes a denial of......
  • Owino v. Holder, No. 12–71321.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • November 4, 2014
    ...to cross-examine her. Owino failed to raise this claim to the BIA. We therefore lack jurisdiction to consider it. Arsdi v. Holder, 659 F.3d 925, 928–29 (9th Cir.2011); Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir.2009) (en banc).E. The Agency's Inadequate Consideration of the Evidence An ......
  • Owino v. Holder, No. 12–71321.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • November 4, 2014
    ...to cross-examine her. Owino failed to raise this claim to the BIA. We therefore lack jurisdiction to consider it. Arsdi v. Holder, 659 F.3d 925, 928–29 (9th Cir.2011) ; Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir.2009) (en banc).E. The Agency's Inadequate Consideration of the Evidence An......
  • Owino v. Holder, No. 12–71321.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • November 4, 2014
    ...to cross-examine her. Owino failed to raise this claim to the BIA. We therefore lack jurisdiction to consider it. Arsdi v. Holder, 659 F.3d 925, 928–29 (9th Cir.2011); Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir.2009) (en banc). E. The Agency's Inadequate Consideration of the Evidence An......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT