Luis Eduardo Sagastume-Montiel v. U.S. Attorney General , 674 F. App'x 954 ( 2017 )

Case: 16-12028 Date Filed: 01/17/2017 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-12028
Non-Argument Calendar
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Agency No. A094-806-031
LUIS EDUARDO SAGASTUME-MONTIEL,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
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(January 17, 2017)
Before HULL, WILSON and WILLIAM PRYOR, Circuit Judges.
PER CURIAM:
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Luis Eduardo Sagastume-Montiel, a native and citizen of Guatemala,
petitions for review of an order affirming the denial of his application for
cancellation of removal. See 8 U.S.C. § 1229b(b)(1). The Board of Immigration
Appeals affirmed the finding that Sagastume-Montiel was removable as an
inadmissible alien by virtue of being an applicant for admission to the United
States without a valid entry document. See id. § 1182(a)(7)(A)(i)(I). Sagastume-
Montiel argues that he was not an applicant for admission because he was allowed
to reenter the country under an advance authorization for parole. Sagastume-
Montiel also argues that, even if he was an applicant, his advance parole was a
“valid entry document” that entitled him to admission to the country. We deny in
part and dismiss in part Sagastume-Montiel’s petition.
The Board did not err in finding that Sagastume-Montiel was an
inadmissible alien. In 1998, Sagastume-Montiel entered the United States on a
nonimmigrant visa, but he remained in the country without authorization and was
arrested after misrepresenting that he was a U.S. citizen. After Sagastume-
Montiel’s immigration proceedings were deferred, he received advance
authorization for parole and left the country. Sagastume-Montiel returned to the
United States as an inadmissible alien. “[A]t the time of application for
admission,” Sagastume-Montiel was “not in possession of a valid unexpired
immigrant visa, reentry permit, border crossing identification card, or other valid
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entry document required by this chapter, and a valid unexpired passport, or other
suitable travel document, or document of identity and nationality.” Id. Although
Sagastume-Montiel was paroled into the United States, “such parole . . . [was]
not . . . regarded as an admission” and it was immediately terminated, which
resulted in him being “dealt with . . . as that of any other applicant for admission to
the United States.” See id. § 1182(d)(5)(A); see also id. § 1101(a)(13)(B) (“An
alien who is paroled under section 1182(d)(5) of this title . . . shall not be
considered to have been admitted.”). Parole “allowed [Sagastume-Montiel] into the
country but [he] remain[ed] constructively at the border, seeking admission and
subject to exclusion proceedings.” See Assa’ad v. U.S. Att’y Gen., 332 F.3d 1321,
1338 (11th Cir. 2003); see also Leng May Ma v. Barber, 357 U.S. 185, 190 (1958)
(“parole . . . is simply a device through which needless confinement is avoided
while administrative proceedings are conducted” and “was never intended to affect
an alien’s status”). We deny that part of Sagastume-Montiel’s petition challenging
his classification as an inadmissible alien.
We lack jurisdiction to review whether Sagastume-Montiel’s advance parole
served as a valid entry document. That issue was not addressed during Sagastume-
Montiel’s removal hearing or in his appeal to the Board. See Lin v. U.S. Att’y Gen.,
555 F.3d 1310, 1316–17 n.5 (11th Cir. 2009). “We lack jurisdiction to consider a
claim raised in a petition for review unless the petitioner has exhausted his
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administrative remedies with respect thereto.” Amaya–Artunduaga v. U.S. Att’y
Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). We dismiss this part of Sagastume-
Montiel’s petition.
PETITION DENIED IN PART AND DISMISSED IN PART.
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