Magnaset Otano Martinez v. U.S. Attorney General , 415 F. App'x 189 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-13141 ELEVENTH CIRCUIT
FEB 23, 2011
Non-Argument Calendar
JOHN LEY
________________________ CLERK
Agency No. A045-154-356
MAGNASET OTANO MARTINEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent,
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(February 23, 2011)
Before BLACK, WILSON, and MARTIN, Circuit Judges.
PER CURIAM:
Magnaset Otano Martinez, a citizen and native of the Dominican Republic,
seeks review of an order of the Board of Immigration Appeals (“BIA”) affirming
the Immigration Judge’s determination that Martinez is removable under
§ 237(a)(1)(D)(i) of the Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1227(a)(1)(D)(i). The IJ found that Martinez failed to establish that his marriage
was entered into for any reason other than to procure an immigration benefit,
namely status as a lawful permanent resident under § 216 of the INA. See 8
U.S.C. § 1186a(a). After thorough review, we dismiss Martinez’s petition to the
extent that it raises claims that he failed to exhaust before the BIA and deny the
remaining claims.
I.
“Where the BIA issues its own opinion, we review only that opinion, except
to the extent that it expressly adopts the immigration judge’s reasoning.”
Todorovic v. U.S. Att’y Gen., 621 F.3d 1318, 1324 (11th Cir. 2010) (citing Chen
v. U.S. Att’y Gen., 463 F.3d 1228, 1230 (11th Cir. 2006)). “Insofar as the BIA
adopts the IJ’s reasoning, we review the IJ’s decision as well.” Chen, 463 F.3d at
1230. “We review administrative fact findings, including credibility
determinations, under the ‘highly deferential’ substantial evidence test.”
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Todorovic, 621 F.3d at 1323. Substantial evidence is “such relevant evidence as a
reasonable person would accept as adequate to support a conclusion.” Id. at 1324(quotation marks omitted). Factual findings “can be reversed only if the evidence
‘compels’ a reasonable fact finder to find otherwise.” Sepulveda v. U.S. Att’y
Gen., 401 F.3d 1226, 1230 (11th Cir. 2005).
II.
Martinez raises several arguments before this Court that he failed to exhaust
before the BIA. Martinez first argues that the initial decision to terminate his
conditional residency status was untimely under 8 U.S.C. § 1186a(c)(3)(A) and
therefore an improper basis for removal. He next asserts that he was eligible for a
hardship waiver under 8 U.S.C. § 1186a(c)(4)(B), INA § 216(c)(4), because he
entered into his first marriage to a citizen spouse in good faith. Martinez did not
raise these claims before the BIA, and we lack jurisdiction over claims that a
petitioner failed to exhaust in administrative proceedings. See Amaya-Artunduaga
v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (“We lack jurisdiction to
consider a claim raised in a petition for review unless the petitioner has exhausted
his administrative remedies with respect thereto.” (citing 8 U.S.C. § 1252(d)(1)).
We therefore dismiss Martinez’s petition to the extent that it relies on these claims.
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III.
Martinez next argues that his notice to appear “was unlawfully issued in
violation of [his] procedural due process rights.” Martinez has failed to explain
how the notice to appear was unlawful and does not cite any authority to bolster
his claim. “We routinely decline to address such cursory arguments, and this case
presents no exception.” United States v. Belfast, 611 F.3d 783, 821 (11th Cir.
2010); United States v. Gupta, 463 F.3d 1182, 1195 (11th Cir. 2006) (“We may
decline to address an argument where a party fails to provide arguments on the
merits of an issue in its initial or reply brief. Without such argument the issue is
deemed waived.”). We therefore decline to consider this argument.
IV.
Martinez asks us to remand because the IJ and BIA failed to render a
reasoned decision that would allow for meaningful appellate review. We lack
jurisdiction over Martinez’s claim with respect to the IJ’s decision because he
failed to raise it before the BIA. See Amaya-Artunduaga, 463 F.3d at 1250. We
conclude that the BIA gave reasoned consideration to Martinez’s application and
made adequate findings. The BIA acknowledged Martinez’s arguments and set
forth a thorough analysis explaining why his arguments failed in light of
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governing immigration law and BIA precedent. We therefore reject Martinez’s
argument that the BIA failed to render a reasoned decision.
V.
Martinez next argues that the agency should have charged him with
marriage fraud, under 8 U.S.C. § 1227(a)(1)(G), INA § 237(a)(1)(G), so that he
would have been eligible for a waiver of admissibility under 8 U.S.C.
§ 1227(a)(1)(H), INA § 237(a)(1)(H). Martinez’s argument lacks merit. The INA
provides that “[a]n alien placed in proceedings under [the INA removal
provisions] may be charged with any applicable ground of inadmissibility under
section 1182(a) of this title or any applicable ground of deportability under section
1227(a) of this title.” 8 U.S.C. § 1229a(a)(2). The agency clearly had the
authority and discretion to charge Martinez under § 1227(a)(1)(D)(i) of the INA
instead of § 1227(a)(1)(G) as long as the former was “applicable.”
Chapter 8 U.S.C. § 1227(a)(1)(D)(i) provides that “[a]ny alien with
permanent resident status on a conditional basis under section 1186a . . . who has
had such status terminated under such respective section is deportable.” Martinez
acknowledges that he obtained conditional status as a permanent resident by
marrying a citizen. The agency terminated that status upon finding that Martinez
failed to establish that his marriage was entered into for any reason other than to
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procure an immigration benefit. Thus, the provision under which the agency
charged Martinez clearly was applicable. The agency therefore had the authority
and discretion to charge Martinez under it.
VI.
Finally, Martinez appears to argue that he was deprived of an opportunity to
present evidence to prove the validity of his first marriage. This argument lacks
merit. “[P]rocedural due process in the deportation context requires a meaningful
and fair hearing with a reasonable opportunity to be heard . . . .” Anin v. Reno,
188 F.3d 1273, 1277 (11th Cir. 1999). Martinez had a reasonable opportunity to
present evidence at his hearing before the IJ, at which Martinez, through counsel,
conceded the charge of removal. At that hearing, Martinez did not present any
evidence to rebut the allegation that he entered into his first marriage solely to
obtain an immigration benefit. The record therefore undercuts Martinez’s
argument that he had no opportunity to prove the validity of his marriage.
For these reasons, we DENY Martinez’s petition and DISMISS the claims
that Martinez failed to exhaust in his administrative proceedings.
DISMISSED, in part, and DENIED, in part.
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