Leonardo Esparza-Diaz v. U.S. Attorney General , 606 F. App'x 962 ( 2015 )


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  •            Case: 14-11840   Date Filed: 04/02/2015   Page: 1 of 9
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 14-11840
    Non-Argument Calendar
    ________________________
    Agency No. A205-358-855
    LEONARDO ESPARZA-DIAZ,
    Petitioner,
    versus
    U.S. ATTORNEY GENERAL,
    Respondent.
    ________________________
    Petition for Review of a Decision of the
    Board of Immigration Appeals
    ________________________
    (April 2, 2015)
    Before MARTIN, KRAVITCH and ANDERSON, Circuit Judges.
    PER CURIAM:
    Case: 14-11840        Date Filed: 04/02/2015       Page: 2 of 9
    Leonardo Esparza-Diaz petitions this court to review the Board of
    Immigration Appeals’ (BIA) final order affirming the Immigration Judge’s (IJ)
    denial of his application for cancellation of removal, 8 U.S.C. § 1229b(B). For the
    reasons that follow, we deny the petition in part and dismiss it in part.
    I.
    Esparza-Diaz entered the United States without being admitted or paroled in
    1989. 1 He eventually moved to Florida, where he was employed, paid taxes, got
    married, and had children. His parents came to the United States as lawful
    permanent residents in 2011.
    In 2012, the Department of Homeland Security issued Esparza-Diaz a Notice
    to Appear, charging him as removable due to his illegal entry under 
    8 U.S.C. § 1182
    (a)(6)(A)(i). At his hearing before an IJ, Esparza-Diaz conceded his
    removability and applied for cancellation of removal. 2 The government opposed
    relief from removal on the ground that Esparza-Diaz was not eligible for
    cancellation because he had been convicted of a disqualifying offense, specifically,
    a firearm offense.
    The evidence of Esparza-Diaz’s conviction included documents from the
    Indian River County Sheriff’s Office indicating that Esparza-Diaz had been
    1
    Esparza-Diaz’s application for cancellation of removal indicates that he entered in 1989, but a
    handwritten note on the Notice to Appear states that he entered in 1999. Because the conviction
    about which Esparza-Diaz argues occurred in 1995, we assume the 1989 date is correct.
    2
    Esparza-Diaz also applied for withholding of removal and relief from removal under the
    Convention Against Torture, but this application is not before us and we do not discuss it further.
    2
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    arrested in 1995 for carrying a concealed weapon and selling or giving alcohol to a
    minor. The case was later transferred to the County Court of Indian River under a
    “felony reduction,” and Esparza-Diaz was convicted of open carrying of a firearm.
    The IJ concluded that Esparza-Diaz was ineligible for cancellation of
    removal based on this conviction. The IJ then addressed Esparza-Diaz’s counsel:
    IJ:           You agree with that?
    Counsel:      I....
    IJ:           The — for the legal position on, on, on the charge?
    And then is we pretermit, does he still want to
    continue with his withholding?
    Counsel:      He doesn’t have relief, it’s just for withholding.
    ...
    Counsel:      We’ll take an order.
    Based on this exchange, the IJ concluded that Esparza-Diaz conceded he was
    ineligible for relief, and the IJ ordered his removal.
    Esparza-Diaz appealed to the BIA. In his Notice of Appeal, he wrote
    It is Respondent’s position that the IJ erred as a matter of law in
    concluding that Respondent’s conviction for the offense of Possession
    of a Firearm made the respondent ineligible for the relief sought. A
    reading of the Statute by itself under the “categorical approach” is not
    sufficient to warrant a conclusion that Respondent’s conviction made
    him ineligible for the relief sought. The IJ erred in using the
    “categorical approach.” The “modified categorical approach” should
    have been used in this case.
    Then, in his brief to the BIA, Esparza-Diaz argued that the IJ “failed to do a
    proper analysis of the circumstances behind [his] conviction,” and “failed to
    3
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    analyze the statute to see if it indeed was a conviction pursuant to Section
    237(a)(2)(C).”
    The BIA dismissed the appeal, finding that Esparza-Diaz had not met
    his burden to show he was eligible for cancellation of removal. The BIA
    concluded, “It is undisputed that respondent was convicted of carrying a
    concealed firearm,” and that Esparza-Diaz did not argue that his conviction
    was not a firearm offense. Esparza-Diaz now seeks review before this court.
    II.
    The government argues that Esparza-Diaz failed to exhaust his claims before
    the BIA, thereby depriving us of jurisdiction to review his claim. Esparza-Diaz
    contends that the BIA erred by affirming the IJ’s decision because his 1995
    conviction was not a disqualifying firearm offense, as he was convicted under a
    divisible statute that contained both firearm offenses and non-firearm offenses. He
    further contends that the IJ and BIA should have applied the law under
    IMMACT90, rather than IIRIRA, because his conviction pre-dated IIRIRA.
    Finally, he states that he should not be penalized for the ineffective assistance of
    his counsel.
    III.
    4
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    We review questions of our subject-matter jurisdiction de novo. Ruiz v.
    Gonzales, 
    479 F.3d 762
    , 765 (11th Cir. 2007).3 We lack jurisdiction to consider a
    claim raised in a petition for review unless the petitioner has exhausted his
    administrative remedies with respect thereto. See 
    8 U.S.C. § 1252
    (d)(1); see also
    Amaya-Artunduaga v. U.S. Att’y Gen., 
    463 F.3d 1247
    , 1250 (11th Cir. 2006)
    (stating that, “absent a cognizable excuse or exception, [this Court] lack[s]
    jurisdiction to consider claims that have not been raised before the BIA”) (citations
    and quotation omitted). To properly raise a claim before the BIA, the petitioner
    must mention the issue and discuss its merits, or at least contest the basis for the
    IJ’s decision. See Alim v. Gonzales, 
    446 F.3d 1239
    , 1253 (11th Cir. 2006)
    (concluding that the petitioner failed to exhaust his cancellation-of-removal claim
    because, in his appeal to the BIA, the petitioner “never discussed the merits of his
    application for cancellation of removal, let alone the IJ’s basis for denying it”).
    Our review of the Notice of Appeal and Esparza-Diaz’s brief to the BIA
    establish that Esparza-Diaz sufficiently alleged the IJ’s error before the BIA. Alim,
    
    446 F.3d at 1253
    . Accordingly, we conclude that Esparza-Diaz exhausted his
    argument that the IJ erred by finding he was ineligible for relief based on his prior
    conviction.
    3
    By statute, our jurisdiction is limited. See 
    8 U.S.C. § 1252
    (a)(2)(C). Nevertheless, we retain
    jurisdiction to consider questions of law such as the one raised here. See 
    8 U.S.C. § 1252
    (a)(2)(D).
    5
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    IV.
    Turning to the merits, we will only review the BIA decision, except to the
    extent that it expressly adopts the IJ’s opinion, in which case we will also review
    the IJ’s decision. Al Najjar v. Ashcroft, 
    257 F.3d 1262
    , 1284 (11th Cir. 2001). If
    the BIA explicitly agrees with particular findings of the IJ, we review both the
    BIA’s and IJ’s conclusions regarding those issues. Ayala v. U.S. Att’y Gen., 
    605 F.3d 941
    , 948 (11th Cir. 2010). In this case, the BIA expressly agreed with the IJ’s
    conclusion that Esparza-Diaz had been convicted of a disqualifying firearm
    offense. Accordingly, we will review both opinions.
    We review de novo questions of law. Accardo v. U.S. Att’y Gen., 
    634 F.3d 1333
    , 1335-36 (11th Cir. 2011). Review of a removal order is conducted only on
    the administrative record on which the removal order is based, and we lack the
    authority to remand a case to the BIA to consider new evidence. See 
    8 U.S.C. § 1252
    (a)(1) and (b)(4)(A); Al Najjar, 257 F.3d at 1278-79, 1281 (stating the general
    rule that appellate courts “may not go outside of the administrative record” and
    explaining that the court is statutorily precluded from remanding to the BIA for
    consideration of new evidence). Moreover, Esparza-Diaz argues for the first time
    in his reply brief that we should remand for consideration of new evidence. We do
    not consider arguments raised for the first time in a reply brief. Big Top Koolers,
    Inc. v. Circus-Man Snacks, Inc., 
    528 F.3d 839
    , 844 (11th Cir. 2008).
    6
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    The IJ’s factual determinations are reviewed under a substantial evidence
    standard, and we will affirm the IJ’s decision so long as it is supported by
    reasonable, substantial, and probative evidence on the record considered as a
    whole. De Santamaria v. U.S. Att’y Gen., 
    525 F.3d 999
    , 1006 (11th Cir. 2008).
    Under this test, the IJ’s decision can be reversed only if the record compels a
    reasonable fact finder to conclude otherwise. 
    Id.
    The Attorney General may cancel removal of a non-permanent resident alien
    who is inadmissible or deportable if the alien meets certain conditions. Relevant to
    this case, Esparza-Diaz must not have been convicted of one of the enumerated
    offenses. 8 U.S.C. § 1229b(b)(1). The enumerated disqualifying offenses include
    any conviction “under any law of purchasing, selling, offering for sale,
    exchanging, using, owning, possessing, or carrying . . . any weapon, part, or
    accessory which is a firearm.” 
    8 U.S.C. §§ 1227
    (a)(2), 1129b(b)(1)(C).
    A respondent “charged with deportability shall be found to be removable if
    the Service proves by clear and convincing evidence that the respondent is
    deportable as charged.” 
    8 C.F.R. § 1240.8
    (a). When requesting relief from
    removal, the respondent bears the burden of proving his eligibility for relief. 
    8 C.F.R. § 1240.8
    (d).
    Here, the government submitted records from state and county courts
    showing that Esparza-Diaz was initially charged with carrying a concealed weapon
    7
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    and that the case was transferred to county court where he was sentenced for open
    carrying of a firearm. Esparza-Diaz did not present any evidence to the IJ or to the
    BIA challenging this finding. In fact, at no time before the IJ or BIA did he even
    identify the Florida Statute under which he was convicted. 
    8 U.S.C. § 1252
    (a)(1)
    and (b)(4)(A); Al Najjar, 257 F.3d at 1278-79, 1281. Accordingly, any new
    evidence regarding his statute of conviction is not properly before us.
    The BIA adopted the IJ’s conclusion that Esparza-Diaz had previously been
    convicted of a disqualifying firearm offense, and this conclusion was supported by
    substantial evidence. The sheriff’s office and court documents demonstrate that
    Esparza-Diaz had been charged with and convicted of a firearm-related offense.
    The IJ and BIA found that Esparza-Diaz conceded through counsel that his prior
    conviction constituted a disqualifying offense, and Esparza-Diaz has never argued
    that he was not convicted of a firearms offense. 4 The record does not compel a
    reasonable factfinder to conclude otherwise. De Santamaria, 
    525 F.3d at 1006
    . As
    such, this claim does not present a basis for us to grant Esparza-Diaz’s petition for
    review. 5
    4
    Based on the exchange between the IJ and Esparza-Diaz’s counsel, we are not convinced that
    counsel conceded Esparza-Diaz’s ineligibility. But we note that Esparza-Diaz has never argued
    that he was not convicted of a firearms offense, nor has he challenged the IJ’s and BIA’s finding
    that he conceded ineligibility. Rather, his arguments have challenged the sufficiency of the
    evidence before the IJ and the manner of the IJ’s analysis.
    5
    Even if we were to review the conviction using the modified categorical approach, we would
    reach the same conclusion as the IJ and BIA. See Donawa v. U.S. Att’y Gen., 
    735 F.3d 1275
    ,
    8
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    V.
    Finally, before the BIA, Esparza-Diaz did not raise his claims regarding
    ineffective assistance of counsel, that IIRIRA does not apply because he was
    convicted prior to the date of its enactment, or that the statute under which he was
    convicted was divisible. Thus, these unexhausted claims are not properly before
    us. Amaya-Artunduaga, 
    463 F.3d at 1250
    .
    PETITION DENIED in part, DISMISSED in part.
    1280 (11th Cir. 2013) (applying modified approach to divisible statute). The record of
    conviction clearly indicates that Esparza-Diaz was convicted of and sentenced for open carrying
    of a firearm. There can be little dispute that such an offense qualifies as a firearm offense under
    
    8 U.S.C. §§ 1227
    (a)(2), 1129b(b)(1)(C).
    9