Hernandez v. Gonzales , 172 F. App'x 577 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 27, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
_____________________
No. 05-60559
Summary Calendar
____________________
RODOLFO TURRUBIARTES HERNANDEZ,
Petitioner,
v.
ALBERTO R. GONZALES, Attorney General of the United States,
Respondent.
__________________
ON PETITION FOR REVIEW FROM A FINAL ORDER OF
THE BOARD OF IMMIGRATION APPEALS
__________________
Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:1
Petitioner Hernandez challenges the order of the Board of
Immigration Appeals affirming the immigration judge’s order of
removability. In lieu of a Response, Respondent moves for
1
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
1
summary affirmance of the BIA’s order. Instead, we dismiss
Hernandez’ appeal for lack of jurisdiction.2
Hernandez, a native and citizen of Mexico, became a lawful
permanent resident of the United States in 1990 under the amnesty
provisions of the Immigration Reform and Control Act of 1986. In
2004, Hernandez was charged with and pled guilty in federal court
to possession with intent to distribute over 700 kilograms of
marijuana. Soon thereafter, Hernandez received a Notice to
Appear charging him with being removable as an alien who, after
admission to the United States, committed an aggravated felony
under Section 237(a)(2)(A)(iii) of the Immigration and
Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii).
At a hearing before an immigration judge, Hernandez conceded
removability, and the immigration judge concluded that Hernandez
was ineligible for cancellation under INA § 240A(a)(3), 8 USC §
1229b(a)(3). Hernandez appealed to the BIA, arguing that the
immigration judge had erred in denying him a waiver of removal
pursuant to INA §§ 212(c), 212(h), and § 245, 8 U.S.C. §§
1182(c), 1182(h), and 1255. However, Hernandez had never
requested such relief from the immigration judge.
2
We therefore deny Respondent’s motions for summary
affirmance and for an extension of time to file a response as
moot.
2
“[A] court may review a final order of removal only if the
alien has exhausted all his administrative remedies.” 8 U.S.C. §
1252(d)(1); see also Wang v. Ashcroft, 260 F.3d 448, 452-53 (5th
Cir.2001) (“Because it is statutorily mandated, an alien's
failure to exhaust his administrative remedies serves as a
jurisdictional bar to [a court's] consideration of the issue.”);
Cardoso v. Reno, 216 F.3d 512, 518 (5th Cir.2000) (“As a matter
of jurisdiction, courts may not review the administrative
decisions of the INS unless the appellant has first exhausted
'all administrative remedies.’”) Because Hernandez never
requested that the immigration judge waive removability under INA
§§ 212(c), 212(h), or 245, and instead raised his requests for
relief for the first time as allegations of error to the BIA,
Hernandez has failed to exhaust his administrative remedies.3
This court, therefore, is without jurisdiction to consider his
Petition.
The Petition for Review is DISMISSED.
3
It is irrelevant that Petitioners raised his claims for
relief before the BIA. See Matter of Jimenez-Santillano, 21
I. & N. Dec. 567, 570 n. 2, 1996 WL 426890 (BIA 1996) (stating
that BIA need not consider an issue raised for the first time
on appeal); Matter of Edwards, 20 I & N Dec. 191, 196 n. 4,
1990 WL 385757 (BIA 1990) (same).
3