Jorge Hernandez v. U.S. Attorney General , 400 F. App'x 439 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10872 ELEVENTH CIRCUIT
Non-Argument Calendar OCTOBER 4, 2010
________________________ JOHN LEY
CLERK
Agency No. A023-212-982
JORGE HERNANDEZ,
lllllllllllllllllllll Petitioner,
versus
U.S. ATTORNEY GENERAL,
lllllllllllllllllll llRespondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(October 4, 2010)
Before TJOFLAT, WILSON and FAY, Circuit Judges.
PER CURIAM:
Jorge Hernandez, a Cuban citizen and permanent resident of the United
States, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision
affirming the Immigration Judge’s (“IJ”) final order of removal and denying his
application for a waiver of inadmissibility under the Immigration and Nationality
Act (“INA”), INA § 212(c), 8 U.S.C. § 1182(c). He argues that the BIA erred in
finding that his convictions for sexual abuse of a minor rendered him ineligible for
§ 212(c) relief. He points out that the case on which the BIA relied, Matter of
Blake, 23 I & N Dec. 722 (BIA 2005), was overturned by the Second Circuit in
Blake v. Carbone, 489 F.3d 88 (2d Cir. 2007). He asserts that Matter of Blake was
wrongly decided and that he is, in fact, eligible for a waiver of inadmissibility
under § 212(c). Hernandez also contends that Matter of Blake and the BIA’s
statutory counterpart test cannot be retroactively applied to pre-2004 convictions.
For the reasons set forth below, we dismiss the petition for review in part and deny
it in part.
I.
In 2008, the Department of Homeland Security issued a Notice to Appear to
Hernandez, charging that he was removable from the United States because he had
been convicted of aggravated felonies. Specifically, the notice alleged that
Hernandez had been convicted of two counts of custodial familial sexual battery,
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in violation of Fla.Stat. § 794.04. Hernandez conceded that he was removable as
charged, but he sought a waiver of inadmissibility pursuant to § 212(c).
The IJ denied Hernandez’s application for a waiver of inadmissibility. The
IJ noted that, in Matter of Blake, the BIA held that an individual convicted of
sexually abusing a minor is ineligible for § 212(c) relief because that offense does
not have a statutory counterpart in any of the grounds of inadmissibility under
INA § 212(a), 8 U.S.C. § 1182(a). Hernandez appealed to the BIA. In his appeal
brief, he argued that the IJ erred by applying Matter of Blake because that case
was overruled in Carbone. The BIA affirmed the IJ’s decision.
II.
Before addressing the merits of Hernandez’s arguments, we must consider
whether we have jurisdiction over his petition for review. We review our own
subject-matter jurisdiction de novo. Amaya-Artunduaga v. U.S. Att'y Gen., 463
F.3d 1247, 1250 (11th Cir. 2006). Generally, we may not review a final order of
removal where the petitioner was found to be removable based on a conviction for
an aggravated felony. INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C).
Nevertheless, we retain jurisdiction to review constitutional issues and questions
of law. INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D). By statute, the petitioner
must administratively exhaust his arguments by raising them before the BIA.
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Amaya-Artunduaga, 463 F.3d at 1250. We lack jurisdiction to consider
unexhausted arguments. Id.In this case, Hernandez raises two issues before use. First, he argues that
the BIA’s decision in Matter of Blake is contrary to precedent and is inconsistent
with the INA and the agency’s own regulations. Second, he contends that
application of Matter of Blake to his case would result in an impermissible
retroactive effect. Both of these issues present questions of law.
However, in his appeal brief before the BIA, Hernandez argued only that
Matter of Blake was wrongly decided and was no longer binding in light of the
Second Circuit’s decision in Carbone. He did not assert that the IJ erred by
retroactively applying Matter of Blake to his case. Because Hernandez failed to
exhaust his administrative remedies with respect to the retroactivity question, we
lack jurisdiction to consider it.1 Accordingly, we will dismiss Hernandez’s
petition with respect to that issue. Since Hernandez did exhaust his argument that
Matter of Blake was wrongly decided, we will consider the merits of that issue.
II.
1
Even if Hernandez had exhausted his administrative remedies, his retroactivity argument
is meritless. See Valere v. Gonzales, 473 F.3d 757, 761-62 (7th Cir. 2007) (holding that Matter
of Blake can be applied retroactively); Vue v. Gonzales, 496 F.3d 858, 862-63 (8th Cir. 2007)
(same).
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“We review the BIA’s legal determinations de novo.” De la Rosa v. U.S.
Att’y Gen., 579 F.3d 1327, 1335 (11th Cir. 2009). Under the prior panel precedent
rule, a prior decision of a panel of this Court is binding on all subsequent panels
unless and until the panel’s decision is overturned by the Supreme Court or by this
Court sitting en banc. Smith v. GTE Corp., 236 F.3d 1292, 1300 n.8 (11th Cir.
2001).
In 2004, the Attorney General promulgated 8 C.F.R. § 1212.3(f)(5), which
provides that an application for cancellation of removal must be denied if the alien
is deportable or removable based on an offense that does not have a “statutory
counterpart” in the grounds of inadmissibility codified in INA § 212(a). In Matter
of Blake, the BIA determined that an alien convicted of sexual abuse of a minor
was ineligible for § 212(c) relief because his offense did not have a statutory
counterpart in any of the grounds of inadmissibility listed in § 212(a). Matter of
Blake, 23 I & N at 727-29. The BIA explained that a ground of inadmissibility is a
statutory counterpart to an aggravated felony only if it involves “essentially the
same category of offenses” as the felony charge. Id. at 729. The inquiry “turns
on whether Congress has employed similar language to describe substantially
equivalent categories of offenses.” Id. at 728.
In De la Rosa, we adopted the BIA’s categorical approach to the statutory
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counterpart test. De la Rosa, 579 F.3d at 1337. We declined to accept the
alternative, offense-based approach employed by the Second Circuit in Carbone.
Id. We deferred to the BIA’s conclusion in Matter of Blake that sexual abuse of a
minor does not have a statutory counterpart in INA § 212(a). Id. at 1340.
Hernandez’s argument that Matter of Blake was wrongly decided is
foreclosed by our decision in De la Rosa, which affirmed Matter of Blake and
adopted its categorical approach to the statutory counterpart test. Although the
Second Circuit rejected the BIA’s approach in Carbone, the Second Circuit’s
opinion did not affect the validity of Matter of Blake in this Circuit. We are bound
by our decision in De la Rosa unless and until that case is overruled by the
Supreme Court or by this Court sitting en banc. See Smith, 236 F.3d at 1300 n.8.
Under De la Rosa and Matter of Blake, Hernandez’s aggravated felony conviction
for sexual abuse of a minor rendered him ineligible for § 212(c) relief. See De la
Rosa, 579 F.3d at 1340; Matter of Blake, 23 I & N. Dec. at 727-29. Therefore, the
BIA properly denied Hernandez’s application for a waiver of inadmissibility.
Accordingly, we deny the petition for review in part and dismiss it in part.
PETITION DENIED IN PART, DISMISSED IN PART.
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