Condermarin-Caceres v. Holder, Jr. ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
May 5, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
RODOLFO RAFAEL
CONDERMARIN-CACERES,
Petitioner,
No. 10-9561
v. (Petition for Review)
ERIC H. HOLDER, JR., Attorney
General of the United States,
Respondent.
ORDER AND JUDGMENT *
Before O’BRIEN, ANDERSON, and HOLMES, Circuit Judges.
Rodolfo Rafael Condermarin-Caceres petitions for our review of a Bureau
of Immigration Appeals (BIA) decision dismissing his appeal from the denial of a
motion to reopen his removal proceedings. Because petitioner did not exhaust the
issues he now raises, we dismiss the petition for review.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Petitioner failed to appear for his removal hearing before the Immigration
Judge (IJ), thereby abandoning any applications for relief from removal. Admin.
R. at 61. Upon finding the requisite written notice of the hearing had been given
and the charge of removability established by the evidence, the IJ ordered
petitioner removed in absentia. Id. Three years later, after he had married a U.S.
citizen who filed a Petition for Alien Relative on his behalf, petitioner moved to
reopen. As relevant here, an in absentia removal order may be rescinded through
a motion to reopen on two grounds: “the alien demonstrates that the failure to
appear was because of exceptional circumstances,” provided the motion to reopen
is filed within 180 days of the removal order, 8 U.S.C. § 1229a(b)(5)(C)(i); or
“the alien demonstrates that the alien did not receive notice [of the removal
hearing] in accordance with paragraph (1) or (2) of section 1229(a),” 1 in which
case the motion may be filed at any time, id. § 1229a(b)(5)(C)(ii).
Petitioner’s motion to reopen did not raise any issue about notice, relying
instead (despite temporal problems) on an exceptional-circumstances argument.
In denying the motion, the IJ specifically noted “entry of the in absentia order
was appropriate because [petitioner] was properly notified of the proceedings and
because [he] does not allege he did not receive notice.” Admin. R. at 33
(emphasis added). The IJ rejected the exceptional-circumstances argument as
1
It is sufficient if written notice is sent to the last known address provided
by the alien. 8 U.S.C. §§ 1229a(b)(5)(A), 1229(a)(1)(F).
-2-
both untimely and meritless (petitioner’s subsequent marriage to a U.S. citizen “is
not an exceptional circumstance which caused his failure to appear”). Id. On
appeal to the BIA, petitioner again raised no issue regarding notice. The BIA
“agree[d] with the [IJ’s] denial of [petitioner’s] motion to reopen,” id. at 3, and
dismissed the appeal, id. at 4.
Although variously framed in terms of improper factfinding, erroneous
application of evidentiary standards, and even constitutional error, all of the
objections petitioner now raises to the denial of his motion to reopen rest on the
basic premise that he did not receive notice of his removal hearing and the IJ and
BIA erred in failing to so find and grant his motion to reopen. But his motion to
reopen and brief to the BIA never challenged receipt of notice. Citing this
omission, the government insists we should dismiss this petition for review for
failure to exhaust administrative remedies, under the rule of Rivera-Zurita v. INS,
946 F.2d 118, 120 n.2 (10th Cir. 1991) (“The 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.”). See also Torres de la Cruz v. Maurer, 483 F.3d 1013, 1017 (10th Cir.
2007); Vatulev v. Ashcroft, 354 F.3d 1207, 1211 (10th Cir. 2003). We agree.
The government notes this court has recognized a significant attenuating
gloss on the exhaustion requirement, but argues it does not apply on the facts
-3-
here. 2 In Sidabutar v. Gonzales, 503 F.3d 1116, 1122 (10th Cir. 2007), we held
issues not raised by an alien may still be deemed exhausted if they were decided
sua sponte in administrative proceedings. But “Sidubutar’s ‘sua sponte
exhaustion’ rule . . . is a narrow one.” Garcia-Carbajal v. Holder, 625 F.3d
1233, 1235 (10th Cir. 2010). For it to apply, “the BIA must: (1) clearly identify
a claim, issue, or argument not presented by the petitioner; (2) exercise its
discretion to entertain the matter; and (3) explicitly decide that matter in a full
explanatory opinion or substantive discussion.” Id.Here, the BIA noted “the record reflects . . . the notice of hearing was
mailed to [petitioner’s] last known address,” Admin. R. at 3, but that does not
identify as an issue, much less explicitly decide, whether he actually received the
notice. 3 The BIA got closer when it found “[petitioner] has not demonstrated a
lack of notice.” Id. But, given the IJ’s express acknowledgment that petitioner
was not disclaiming receipt of the notice, and the absence of any argument on that
point in his brief to the BIA, there is no basis for construing the BIA’s language
as anything more than it actually was, merely a recognition that petitioner had not
demonstrated–indeed, had made no attempt to demonstrate–a lack of notice (and
2
Petitioner, who failed to anticipate the government’s exhaustion objection
in his opening brief and chose not to file a reply brief, has left the government’s
discussion of this critical point effectively unopposed.
3
We note petitioner also objects, in passing, that the address used for the
notice of hearing was deficient, in that it lacked an apartment number. This point
was likewise never made to or explicitly resolved by the BIA.
-4-
it would have been his burden to do so, Thongphilack v. Gonzales, 506 F.3d 1207,
1209 (10th Cir. 2007)). That falls well short of the BIA clearly identifying and
then exercising its discretion to explicitly decide the distinct question whether the
record affirmatively established petitioner did in fact receive the notice (a finding
that did not need to be made precisely because he had not disputed the point).
“Whenever an agency states a conclusion . . .[,] it impliedly rejects any
number of unmade potential arguments. But that doesn’t mean the agency
noticed those arguments, let alone considered and ruled on them.” Id. at 1239.
All of the strict requirements for sua sponte exhaustion must be clearly satisfied
in order to accord the agency the deference to which it is entitled. Id. Thus,
sua sponte exhaustion “will be the rare exception, not the rule.” Id. at 1238. This
rare exception does not apply here.
We lack jurisdiction to consider petitioner’s overarching contention that he
did not receive notice of the removal hearing. As all of his assignments of error
are inextricably based on that contention, we must dismiss the petition for review.
The petition for review is DISMISSED.
Entered for the Court
Terrence L. O’Brien
Circuit Judge
-5-