Sola v. Holder, No. 11–71917.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtPER CURIAM:
Citation720 F.3d 1134
PartiesRosaura SOLA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
Decision Date27 June 2013
Docket NumberNo. 11–71917.

720 F.3d 1134

Rosaura SOLA, Petitioner,
v.
Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 11–71917.

United States Court of Appeals,
Ninth Circuit.

Argued and Submitted May 9, 2013.
Filed June 27, 2013.



Jaime Jasso (argued), Westlake Village, CA, for Petitioner.

Tony West, Assistant Attorney General, David V. Bernal, Assistant Director, and

[720 F.3d 1135]

Jesse M. Bless (argued), Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for Respondent.


On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A079–527–101.
Before: DIARMUID F. O'SCANNLAIN, RICHARD A. PAEZ, and SANDRA S. IKUTA, Circuit Judges.

OPINION

PER CURIAM:

Petitioner Rosaura Sola, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals (BIA) order affirming an Immigration Judge's (IJ) decision finding Sola removable, denying her temporary protective status (TPS) relief, and granting her voluntary departure in lieu of removal. Because Sola failed to exhaust the only issue raised in her petition for review, we dismiss the petition for lack of jurisdiction. 8 U.S.C. § 1252(d)(1).

Sola's husband, Ebelio Sola Rosa (Ebelio Rosa), is a native and citizen of El Salvador. He affirmatively applied for asylum under 8 U.S.C. § 1158 and special rule cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act (NACARA), Pub.L. No. 105–100, 111 Stat. 2160 (1997), as amended by Pub.L. No. 105–139, 111 Stat. 2644 (1997); see also8 C.F.R. § 1240.66. Both these forms of relief are available to an applicant's spouse and children as derivative beneficiaries of the applicant. 8 U.S.C. § 1158(b)(3)(A); 8 C.F.R. § 1240.61(a)(4). Sola submitted an affirmative application for NACARA relief as well. Her application rested on her status as a derivative beneficiary of Ebelio Rosa, however, and she was therefore entitled to relief under NACARA only if Ebelio's application was granted. Their affirmative applications were denied. At this point, Sola was placed into removal proceedings. But Ebelio Sola Rosa was not placed into removal proceedings because he was granted TPS under 8 U.S.C. § 1254a.

If Ebelio Sola Rosa is ever placed in removal proceedings, he will have the opportunity to have his NACARA and asylum claims re-adjudicated before an IJ. Petitioner Sola argues that she was denied due process when the government placed her in removal proceedings without her husband because she is unable to assert her claims to derivative relief on the basis of her husband's NACARA and asylum claims. If she were placed in removal proceedings at the same time as her husband, he would be able to pursue...

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96 practice notes
  • Amaya v. Garland, No. 18-70060
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 7, 2021
    ...his claim before the BIA, and we lack jurisdiction to reach the underlying merits of Amaya's due process claim. See Sola v. Holder , 720 F.3d 1134, 1136 (9th Cir. 2013) ("Challenges to procedural errors correctable by the administrative tribunal, must be exhausted before we undertake review......
  • Vasquez-Rodriguez v. Garland, No. 19-71445
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 5, 2021
    ...e.g. , Honcharov v. Barr , 924 F.3d 1293, 1296 n.2 (9th Cir. 2019) (per curiam); Juarez Alvarado , 759 F.3d at 1127 ; Sola v. Holder , 720 F.3d 1134, 1135 (9th Cir. 2013) (per curiam). And several other courts of appeals agree. See Sousa v. INS , 226 F.3d 28, 31–32 (1st Cir. 2000) ; Bin Lin......
  • Iraheta-Martinez v. Garland, No. 18-72692
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 7, 2021
    ...BIA. "An exception to the exhaustion requirement has been carved for constitutional challenges to ... [DHS] procedures." Sola v. Holder , 720 F.3d 1134, 1135 (9th Cir. 2013) (per curiam) (first alteration in original) (quoting Rashtabadi v. INS , 23 F.3d 1562, 1567 (9th Cir. 1994) ). As to ......
  • United States v. Stoltz, No. 11–30297.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 27, 2013
    ...There is no reason to dismiss this criminal indictment to remedy a procedural violation that occurred in another, distinct proceeding. It [720 F.3d 1134]was therefore error to dismiss the indictment. REVERSED.--------Notes: 1. The relevant date for whether the servicemember is attached to o......
  • Request a trial to view additional results
96 cases
  • Amaya v. Garland, No. 18-70060
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 7, 2021
    ...his claim before the BIA, and we lack jurisdiction to reach the underlying merits of Amaya's due process claim. See Sola v. Holder , 720 F.3d 1134, 1136 (9th Cir. 2013) ("Challenges to procedural errors correctable by the administrative tribunal, must be exhausted before we undertake review......
  • Vasquez-Rodriguez v. Garland, No. 19-71445
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 5, 2021
    ...e.g. , Honcharov v. Barr , 924 F.3d 1293, 1296 n.2 (9th Cir. 2019) (per curiam); Juarez Alvarado , 759 F.3d at 1127 ; Sola v. Holder , 720 F.3d 1134, 1135 (9th Cir. 2013) (per curiam). And several other courts of appeals agree. See Sousa v. INS , 226 F.3d 28, 31–32 (1st Cir. 2000) ; Bin Lin......
  • Iraheta-Martinez v. Garland, No. 18-72692
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 7, 2021
    ...BIA. "An exception to the exhaustion requirement has been carved for constitutional challenges to ... [DHS] procedures." Sola v. Holder , 720 F.3d 1134, 1135 (9th Cir. 2013) (per curiam) (first alteration in original) (quoting Rashtabadi v. INS , 23 F.3d 1562, 1567 (9th Cir. 1994) ). As to ......
  • United States v. Stoltz, No. 11–30297.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 27, 2013
    ...There is no reason to dismiss this criminal indictment to remedy a procedural violation that occurred in another, distinct proceeding. It [720 F.3d 1134]was therefore error to dismiss the indictment. REVERSED.--------Notes: 1. The relevant date for whether the servicemember is attached to o......
  • Request a trial to view additional results

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