Bustillos-Sosa v. Holder , 384 F. App'x 714 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
June 24, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
TANYA BUSTILLOS-SOSA,
Petitioner,
v. No. 09-9536
(Petition for Review)
ERIC H. HOLDER, JR., United States
Attorney General,
Respondent.
ORDER AND JUDGMENT *
Before HOLMES, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL,
Circuit Judge.
*
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not binding precedent, except under the doctrines of law of the case, res judicata,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.
Tanya Bustillos-Sosa, a native and citizen of Mexico, seeks review of a
removal order issued by the Department of Homeland Security (DHS). 1 Because
she failed to exhaust her administrative remedies, we dismiss the petition.
B ACKGROUND
Bustillos-Sosa unlawfully entered the United States in 2002. Several years
later, she was arrested by the Yuma, Colorado police, and convicted in 2008 of
one count of trespass to farmland with the intent to commit a felony, Colo. Rev.
Stat. § 18-4-503(1)(a), (2)(b). She was sentenced to two-years’ incarceration.
On June 4, 2009, DHS began expedited removal proceedings against
Bustillos-Sosa on the basis of her conviction by serving her with a Notice of
Intent to Issue a Final Administrative Order (NOI). 2 The NOI informed her that
she had ten days to respond to the charges, including obtaining legal
representation, reviewing the government’s evidence, rebutting the charges, and
requesting an extension of time. Bustillo-Sosa signed the certificate-of-service
form and checked boxes on the form declaring that she did “not wish to contest
. . . removal,” “admit[ting] the allegations and charge in [the NOI],” “waiv[ing]
1
Although Bustillos-Sosa’s petition for review states that she seeks relief
from a “Notice of Intent to Issue a Final Administrative Removal Order,” we
construe the petition as challenging the removal order ultimately issued in this
case, rather than the notice. See 8 U.S.C. § 1252(a) (extending judicial review to
“a final order of removal”). Indeed, the jurisdictional statement in her opening
brief identifies the removal order as prompting the instant petition.
2
Under 8 U.S.C. § 1228(a)(3)(A), an alien convicted of an “aggravated
felony” is subject to expedited removal.
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[her] right to rebut and contest the . . . charge[ ],” and “admit[ting] that [she]
[was] deportable and . . . not eligible for any form of relief from removal.”
A.R. at 7. She also checked a box on the form waiving her right to remain in the
United States for fourteen days if she wished to seek judicial review of a final
order. On June 9, 2009, DHS served Bustillos-Sosa with a Final Administrative
Removal Order, and removed her to Mexico on June 12.
Represented by counsel, Bustillos-Sosa then filed the instant petition for
review, challenging the removal order’s characterization of her conviction as an
aggravated felony. The government argues that this court lacks jurisdiction to
reach this issue because Bustillos-Sosa failed to present it to DHS in response to
the NOI. We agree with the government.
D ISCUSSION
We “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). Exhaustion gives the agency “the opportunity to apply its
specialized knowledge and experience to the matter, and to resolve a controversy
or correct its own errors before judicial intervention.” Sidabutar v. Gonzales,
503 F.3d 1116, 1121 (10th Cir. 2007) (citation and quotation marks omitted).
Bustillos-Sosa had the opportunity to raise with DHS her claim that her
conviction does not qualify as an aggravated felony, but instead she admitted the
NOI’s allegations and charge, and she expressly declined to contest her removal
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on any basis. By declining her administrative remedies, she has failed to perfect
this court’s jurisdiction. See, e.g., Fonseca-Sanchez v. Gonzales, 484 F.3d 439,
443-44 (7th Cir. 2007); Gonzalez v. Chertoff, 454 F.3d 813, 816 (8th Cir. 2006);
Sutariya v. U.S. Attorney Gen., 299 F. App’x 949, 950-51 (11th Cir. 2008);
Edward v. Attorney Gen., 165 F. App’x 136, 137-38 (3d Cir. 2006).
Bustillos-Sosa claims in her reply brief that she exhausted her
administrative remedies because her attorney contacted her on June 10 and filed a
response to the NOI on June 12—the day Bustillos-Sosa was removed to Mexico.
But such a response is not in the administrative record, and she has not sought to
supplement the record with a copy of the document. Moreover, once
Bustillos-Sosa indicated on June 4 that she had no objection to removal, the
immigration officer in charge of her case was required to issue a final removal
order, see 8 C.F.R. § 238.1(d), which he did on June 9. Thus, even if
Bustillos-Sosa’s attorney filed a response to the NOI, it was too late to exhaust
her administrative remedies.
Bustillos-Sosa next argues that she was denied due process because she did
not have enough time to secure counsel, and the “NOI did not provide . . . [her]
the opportunity to deny that the conviction was an aggravated felony.” Reply
Br. at 9. Although constitutional challenges are excepted from the exhaustion
requirement, this exception does not apply to “administratively correctable
procedural defect[s]” that a petitioner, like Bustillos-Sosa, later frames as a
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constitutional claim. Vicente-Elias v. Mukasey, 532 F.3d 1086, 1094-95 (10th
Cir. 2008). The NOI clearly indicated that Bustillos-Sosa had the right to request
an extension of time, to secure counsel, to review the government’s evidence, and
to rebut the charges. Had she not waived the right to contest removal, the
immigration officer who handled her case could have addressed her claims of
deficient process. 3 Thus, her waiver created a failure to exhaust, which precludes
our review of the due process claim. See Gonzalez, 454 F.3d at 816.
Bustillos-Sosa summarily argues that her equal-protection rights were also
violated. While this constitutional argument may not have been administratively
correctable, so that it would fall within our jurisdiction, Bustillos-Sosa does not
develop it. Consequently, we do not consider it. See United States v. Chee,
514 F.3d 1106, 1112 n.1 (10th Cir. 2008) (“[T]he court will not construct
arguments or theories for the plaintiff in the absence of any discussion of those
issues.” (alteration in original; quotation marks omitted)). We note, however, that
other courts have uniformly rejected equal-protection challenges to the expedited
removal process. See, e.g., Graham v. Mukasey, 519 F.3d 546, 551-52 (6th Cir.
3
Bustillos-Sosa does not claim that she could not understand the NOI and its
certificate of service, both of which were written in English. Rather, she argues
that she did not understand the legal consequences of being removed as an
aggravated felon. See 8 U.S.C. § 1182(a)(9)(A)(i) (providing that an alien
removed for having committed an aggravated felony is ineligible to return to the
United States for twenty years). But as already noted, she could have sought
legal advice on the consequences of not contesting the NOI, but she declined to
do so.
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2008); United States v. Calderon-Segura, 512 F.3d 1104, 1107-08 (9th Cir. 2008);
Gonzalez, 454 F.3d at 818; Flores-Ledezma v. Gonzales, 415 F.3d 375, 381-82
(5th Cir. 2005).
Finally, the instant case is distinguishable from Batrez Gradiz v. Gonzales,
490 F.3d 1206, 1209 (10th Cir. 2007), which holds that exhaustion may be
excused to prevent a “fundamental miscarriage of justice.” In Batrez Gradiz, this
court stated that such a miscarriage of justice could occur if the alien could show
that her conviction is not an aggravated felony. Id. at 1210. But that case did not
involve an alien who had expressly waived her right to contest the charges in the
NOI. We cannot conclude that a miscarriage of justice occurs when an alien’s
aggravated-felony argument goes undecided after she expressly waives her
opportunity to have the argument considered by DHS.
C ONCLUSION
Because Bustillos-Sosa failed to exhaust her claim that her state-court
conviction does not constitute an aggravated felony, we lack jurisdiction to
consider that claim in these proceedings.
Accordingly, the petition for review is DISMISSED.
Entered for the Court
Wade Brorby
Senior Circuit Judge
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