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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-12648
Non-Argument Calendar
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Agency No. A200-614-984
WACHARAPONG TAWEESUK,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(April 20, 2020)
Before WILSON, MARTIN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
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Wacharapong Taweesuk, proceeding with counsel, petitions for review of
the Board of Immigration Appeals’ (BIA) order dismissing his appeal from an
immigration judge’s (IJ) order denying his application for cancellation of removal
and ordering him removed. He argues that the BIA’s interpretation of
§ 240A(b)(1)(C) of the Immigration and Nationality Act (INA), 8 U.S.C.
§ 1229b(b)(1)(C)—under which he was found ineligible for cancellation of
removal—is unreasonable, and thus not due deference under Chevron, U.S.A., Inc.
v. Nat. Res. Def. Council, Inc.,
467 U.S. 837 (1984). For the following reasons, we
dismiss his petition.
Before addressing a petitioner’s arguments on the merits, we assess our
subject-matter jurisdiction de novo. Indrawati v. U.S. Att’y Gen.,
779 F.3d 1284,
1297 (11th Cir. 2015). Our jurisdiction depends on whether the petitioner
exhausted his administrative remedies, which depends on whether he raised his
claim before the BIA. See
id. We lack jurisdiction to address an issue not raised
before the BIA. Amaya-Artunduaga v. U.S. Att’y Gen.,
463 F.3d 1247, 1250 (11th
Cir. 2006) (per curiam); see INA § 242(d)(1), 8 U.S.C. § 1252(d)(1). The
petitioner “must have previously argued the core issue now on appeal.”
Indrawati,
779 F.3d at 1297 (internal quotation mark omitted). Further, where the BIA has
the power to review a claim and provide a remedy, exhaustion of that claim is
required before we can consider it. See Bing Quan Lin v. U.S. Att’y Gen.,
881 F.3d
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860, 868 (11th Cir. 2018) (holding that a petitioner was required to exhaust his
claims because the BIA could have reviewed and remedied them).
The exhaustion requirement “allows the BIA to consider the niceties and
contours of the relevant arguments, thereby fully considering the petitioner’s
claims and compiling a record which is adequate for judicial review.”
Amaya-Artunduaga, 463 F.3d at 1250 (alterations adopted) (internal quotation
marks omitted). Where the BIA addressed an issue sua sponte that a petitioner had
not raised, we held that we nevertheless lacked jurisdiction to review that claim
because we could not say that the BIA “fully considered the petitioner’s claims, as
it had no occasion to address the relevant arguments with respect to the issue it
reviewed, nor can we say there is any record, let alone an adequate record, of how
the administrative agency handled the claim in light of the arguments
presented.”
Id. at 1251.
Here, we lack jurisdiction to review Taweesuk’s claim because the BIA had
the power to remedy his claim but Taweesuk did not adequately raise it before the
BIA in the first instance. Taweesuk’s claim turns on the BIA’s interpretation of an
immigration statute, INA § 240A(b)(1)(C), as described in Matter of Cortez
Canales, 25 I. & N. Dec. 301 (B.I.A. 2010). He claims that the BIA’s current
interpretation is unreasonable.
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Not only does the BIA have the power to revisit its interpretations, it “must
consider varying interpretations and the wisdom of its policy on a continuing
basis.” See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs.,
545 U.S.
967, 981 (2005). In other words, because the BIA could remedy Taweesuk’s
claim, he was required to exhaust it there. See Bing Quan
Lin, 881 F.3d at 868.
But he did not. In his notice of appeal to the BIA, in the first paragraph, he
cited INA § 240A(b)(1)(C) and Matter of Cortez Canales. In the second
paragraph, in one sentence, he offered his interpretation: “‘an offense under section
212(a), 237(a)(2), or 237(a)(3)’ means exactly what it says in that to be ‘an offense
under section 212(a), 237(a)(2), or 237(a)(3),’ the alien must have been convicted
of ‘an offense’ as precisely described in each of these sections.” Then he disagreed
with the existing interpretation: “§ 240A(b)(1)(C) cannot be read to be ‘an offense
described in’ each of the referenced sections as explained in Matter of Ortega
Lopez and Matter of Cortez.” In the third paragraph, in one sentence, he mentions
the consequence to him of “the Court’s reading of § 240A(b)(1)(C).” Finally, he
reserved a right to brief additional arguments.
This is inadequate; at best, his statements amount to unsupported assertions,
not arguments. To start, only one word seems to separate Taweesuk’s preferred
interpretation from the BIA’s: “precisely.” Taweesuk did not elaborate on how or
why that one word is the difference between their interpretations, and he did not
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otherwise explain how his interpretation differs from the BIA’s in Matter of Cortez
Canales. He did not explain why “§ 240A(b)(1)(C) cannot be read” as the BIA
reads it in Matter of Cortez Canales. To the extent he asserts in the second
paragraph that Matter of Cortez Canales was wrongly decided, he did not explain
why or grapple with its reasoning.
As for the third paragraph, in which he alludes to his own circumstances, it
is unclear whether he was challenging the IJ’s application of Matter of Cortez
Canales because of his reference to “the Court’s reading,” or instead the BIA’s
framework in Matter of Cortez Canales. Even assuming he was challenging
Matter of Cortez Canales directly, he did not explain why his circumstances
rendered the BIA’s interpretation unreasonable or otherwise engage with the BIA’s
reasoning for its current interpretation.
Taweesuk’s BIA brief makes his failure to exhaust the issue even more
apparent, if not explicitly admitted. There he did not argue that Matter of Cortez
Canales was wrongly decided. In fact, his only argument seemed to assume that
Matter of Cortez Canales offered the proper framework and to take issue only with
the IJ’s application of that case. And he even “specifically reserve[d] his right to
challenge the agency’s interpretation of the statute in question in [Matter of Cortez
Canales]” before us, suggesting that he intentionally did not argue it. His
assumption that the BIA would stick with its current interpretation does not excuse
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his failure to exhaust. Finally, his citation to Chevron does not amount to an
argument about why he thinks the BIA’s interpretation is unreasonable.
In short, there were no “niceties and contours” of Taweesuk’s claim for the
BIA to consider; it did not fully consider his claim and compile an adequate record
for us to review. See
Amaya-Artunduaga, 463 F.3d at 1250–51. Indeed, the BIA’s
order does not address whether Matter of Cortez Canales was correctly decided,
which also indicates that the BIA did not understand Taweesuk to be challenging
its existing interpretation of the statute. In any event, even if the BIA had analyzed
this statutory-interpretation issue, it essentially would have done so sua sponte
given the bare nature of Taweesuk’s assertions, which would not have exhausted
that issue. See
id. at 1251.
In conclusion, Taweesuk failed to administratively exhaust his claim. He
did not previously argue “the core issue”—the BIA’s interpretation of INA
§ 240A(b)(1)(C) in Matter of Cortez Canales—that he now argues in his petition
for review. See
Indrawati, 779 F.3d at 1297. Because the BIA could have
reassessed its prior interpretation, Taweesuk had an obligation to raise the issue
before the BIA. But he did not, and accordingly, we lack jurisdiction to review
that claim.
PETITION DISMISSED.
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