Robles-Garcia v. Barr

• Decision Date: 24 December 2019
• Docket Number: No. 18-9511,18-9511
• Citation: 944 F.3d 1280
• Parties: Karen Samantha ROBLES-GARCIA, Petitioner, v. William BARR, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

944 F.3d 1280

Karen Samantha ROBLES-GARCIA, Petitioner,

v.William BARR, United States Attorney General, Respondent.

No. 18-9511

United States Court of Appeals, Tenth Circuit.

FILED December 24, 2019

Aaron Elinoff, Elinoff & Associates (Danielle C. Jefferis, with him on the supplemental brief), Denver, Colorado, for Petitioner.

Chad A. Readler and Joseph H. Hunt, Acting Assistant Attorneys General, Civil Division, Kohsei Ugumori, Senior Litigation Counsel, and Aric A. Anderson, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., on the briefs for Respondent.¹

Before HARTZ, EBEL, and McHUGH, Circuit Judges.

HARTZ, J., Concurring in the judgment and joining in Section II(B) of the opinion.

EBEL, Circuit Judge.

Petitioner Karen Robles-Garcia, a Mexican citizen unlawfully in the United States, was ordered removed. She challenges that removal order in two ways. First, relying on Pereira v. Sessions, ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018), Robles-Garcia argues for the first time that the immigration judge ("IJ") who initially presided over her removal proceedings never acquired jurisdiction over those proceedings because the Department of Homeland Security ("DHS") initiated those proceedings by serving Robles-Garcia with a defective Notice to Appear. Because Robles-Garcia has not yet made that argument to the IJ or the Board of Immigration Appeals ("BIA"), it is unexhausted and we, therefore, cannot address it in the first instance here. Second, Robles-Garcia contends that the BIA erred in concluding that she was ineligible to apply for discretionary cancellation of removal. We uphold that determination because Robles-Garcia was unable to show that her theft conviction was not a disqualifying crime involving moral turpitude. We, therefore, DENY Robles-Garcia’s petition for review challenging the BIA’s determination that she was ineligible for cancellation of removal, and we DISMISS the petition for lack of jurisdiction to the extent that it asserts the Pereira question.

I. BACKGROUND

In 1991, at age three, Robles-Garcia was admitted to the United States as a nonimmigrant visitor authorized to remain in this country for up to seventy-two hours and to travel within twenty-five miles of the Mexican border. She stayed longer and traveled further than permitted. In 2008, DHS served Robles-Garcia with a Notice to Appear ("NTA")—the document that DHS issues an immigrant to initiate removal proceedings—charging her with violating her visitor permissions from almost seventeen years earlier. Robles-Garcia admitted the five factual allegations charged in the NTA and conceded she is removable. But she applied for cancellation of removal and adjustment of her status, asserting that her removal would work an "exceptional and extremely unusual hardship" on her two children, 8 U.S.C. § 1229b(b)(1)(D), who are U.S. citizens. To be eligible to request such discretionary relief from removal, however, Robles-Garcia had to show, among other things, that she did not have a conviction for a crime involving moral turpitude ("CIMT"). See 8 U.S.C. § 1229b(b)(1)(C) (applying 8 U.S.C. §§ 1182(a)(2), 1227(a)(2) ). The IJ determined that Robles-Garcia had failed to show that her 2007 theft conviction was not a CIMT; the BIA upheld that determination. Our review here is of the BIA’s decision. See Sarr v. Gonzales, 474 F.3d 783, 790 (10th Cir. 2007).

II. ANALYSIS

A. We lack jurisdiction to consider Robles-Garcia’s unexhausted Pereira argument

As an initial matter, before this court Robles-Garcia now asserts for the first time a new argument challenging the BIA’s order removing her from the United States. While her petition for review was already pending before us, the Supreme Court decided Pereira v. Sessions, ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018). Pereira addressed an NTA that failed to give statutorily required notice of the time and place for the removal proceedings, see 8 U.S.C. § 1229(a)(1)(G)(i), holding that NTA was inadequate to trigger a statutory stop-time rule. Pereira, 138 S. Ct. at 2109-10. Based on Pereira, Robles-Garcia argues for the first time here that the NTA that DHS served her was similarly deficient and, therefore, was inadequate to vest the IJ with jurisdiction over these removal proceedings. Because Robles-Garcia has not yet raised that argument to the IJ or BIA, it is unexhausted and we, therefore, cannot address it here.

"A court may review a final order of removal only if ... the alien has exhausted all administrative remedies available to the alien as of right ...." 8 U.S.C. § 1252(d)(1). The Tenth Circuit has applied this statutory exhaustion requirement to conclude that "[t]he failure to raise an issue on appeal to the [BIA] constitutes failure to exhaust administrative remedies with respect to that question and deprives the Court of Appeals of jurisdiction to hear the matter." Rivera-Zurita v. INS, 946 F.2d 118, 120 n.2 (10th Cir. 1991) (emphasis added); see also Lucio-Rayos v. Sessions, 875 F.3d 573, 579 n.9 (10th Cir. 2017). This exhaustion requirement is based generally on "a fundamental principle of administrative law that an agency must have the opportunity to rule on a challenger’s arguments before the challenger may bring the arguments to court." Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237 (10th Cir. 2010). See generally City of Arlington v. FCC, 569 U.S. 290, 293, 296-301, 307, 133 S.Ct. 1863, 185 L.Ed.2d 941 (2013) (holding courts should afford Chevron ² deference to agency’s determination of its statutory authority to act when that statute is ambiguous).

Here, then, because Robles-Garcia has not yet made her Pereira argument to the IJ or the BIA, we lack jurisdiction to consider it. We reach this conclusion with some reluctance, for several reasons.

First, the Supreme Court has warned us that we should be sparing in our use of the word "jurisdiction." See Fort Bend Cty. v. Davis, ––– U.S. ––––, 139 S. Ct. 1843, 1848-50, 204 L.Ed.2d 116 (2019) ; Gonzalez v. Thaler, 565 U.S. 134, 141-42, 132 S.Ct. 641, 181 L.Ed.2d 619 (2012) ; see also Sky Harbor Air Serv., Inc. v. Reams, 491 F. App'x 875, 891 n.17 (10th Cir. 2012) (unpublished) (listing some of the Supreme Court cases "differentiating between ‘jurisdictional’ and ‘claims processing’ rules").

Second, the statute at issue here requiring exhaustion, 8 U.S.C. § 1252(d)(1), does not use the term "jurisdiction." See Gonzalez, 565 U.S. at 141-42, 132 S.Ct. 641 (recognizing "principle" that "[a] rule is jurisdictional if the Legislature clearly states that a threshold limitation on a statute’s scope shall count as jurisdictional," "[b]ut if Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional" (internal quotation marks, alteration omitted)).

Third, we have previously created exceptions to this so-called "jurisdictional" exhaustion requirement, and we have recognized the possibility of other exceptions,³ further suggesting that exhaustion under § 1252(d)(1) is not really a jurisdictional requirement, but is instead more of an issue of deference or comity left to our discretion to exercise or not. See Bowles v. Russell, 551 U.S. 205, 213-14, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) (stating that Supreme "Court has no authority to create equitable exceptions to jurisdictional requirements").

Of course, it is completely appropriate for the BIA to use its expertise to address and decide an issue first. But here the BIA, in another case, has already addressed and rejected the same Pereira argument that Robles-Garcia is now asserting. See In re Bermudez-Cota, 27 I & N Dec. 441 (BIA Aug. 31, 2018). So, too, has the Tenth Circuit. See Lopez-Munoz v. Barr, 941 F.3d 1013, 1014, 1017-18 (10th Cir. 2019). In light of these rulings, if we had discretion, we might decide that it would be most expedient for us to address Robles-Garcia’s unexhausted Pereira argument now. Nevertheless, our cases make clear that we cannot do so because failure to exhaust an issue, as § 1252(d)(1) requires in the immigration removal context, deprives us of "jurisdiction" to consider that issue. See, e.g., Lucio-Rayos, 875 F.3d at 579 n.9 ; Rivera-Zurita, 946 F.2d at 120 n.2. We are bound by our prior Tenth Circuit precedent. See Lucio-Rayos, 875 F.3d at 582. We conclude, therefore, that we lack jurisdiction to review Robles-Garcia’s unexhausted Pereira claim.

B. The BIA did not err in concluding Robles-Garcia was ineligible to apply for cancellation of removal

Turning now to the merits of the issue in the petition for review that is properly before us, the question presented is whether Robles-Garcia’s 2007 theft conviction was for a crime involving moral turpitude ("CIMT"). This is an issue that Robles-Garcia has administratively exhausted by raising it to the IJ and BIA. We have jurisdiction to consider this legal issue, see 8 U.S.C. § 1252(a)(2)(D), which we review de novo. See Lucio-Rayos, 875 F.3d at 576. Of critical importance here, because the applicant must establish her eligibility for cancellation of removal, see 8 U.S.C. § 1229a(c)(4)(A)(i), it was Robles-Garcia’s burden to prove that her theft conviction was not a CIMT that would disqualify her from being eligible for cancellation of removal. See Lucio-Rayos, 875 F.3d at 581-84 (following Garcia v. Holder, 584 F.3d 1288 (10th Cir. 2009) ).

We apply a categorical approach to determine whether Robles-Garcia’s theft conviction is a CIMT, "comparing the elements of that offense to the [Immigration and Nationality Act’s] definition of a CIMT." Id. at 578. "Although the INA does not provide a generic definition of ‘crime involving moral turpitude,’ ... established BIA precedent provides that a theft conviction like [Robles-Garcia’s] qualifies as a CIMT only if one element of the theft offense is that the perpetrator intended to deprive the victim permanently of his property."⁴ Id....