Raul Rojo Calderon v. Eric Holder, Jr. , 571 F. App'x 280 ( 2014 )

Case: 13-60486 Document: 00512656198 Page: 1 Date Filed: 06/09/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 13-60486
Fifth Circuit
FILED
Summary Calendar June 9, 2014
Lyle W. Cayce
RAUL ROJO CALDERON, Clerk
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A200 889 515
Before JOLLY, DeMOSS, and ELROD, Circuit Judges.
PER CURIAM: *
Raul Rojo Calderon (Rojo), a native and citizen of Mexico, admitted that
he had entered this country without being admitted or paroled and that he was
removable under 8 U.S.C. § 1182(a)(6)(A)(i). He requested relief in the form of
cancellation of removal under 8 U.S.C. § 1229b(b). The immigration judge (IJ)
found that Rojo was not eligible for cancellation of removal because he had not
established the requisite 10 years of continuous physical presence, see
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 13-60486
§ 1229b(b)(1)(A), and he had not established that his qualifying relatives would
suffer the requisite level of hardship upon his removal, see § 1229b(b)(1)(D).
Thus, the IJ denied Rojo’s application for cancellation of removal but granted
him voluntary departure under 8 U.S.C. § 1229c. On appeal, the Board of
Immigration Appeals (BIA) conducted a de novo review and agreed that Rojo
had not established the requisite level of hardship for purposes of
§ 1229b(b)(1)(D). Because the BIA concluded that Rojo was ineligible for
cancellation of removal by virtue of that deficiency, the BIA did not reach the
issue whether he had established the 10 years of continuous physical presence
required by § 1229b(b)(1)(A), and it dismissed Rojo’s appeal. Rojo now petitions
for review of the BIA’s order dismissing his appeal.
Rojo first challenges the BIA’s hardship determination. We lack
jurisdiction over Rojo’s challenge to the BIA’s factual determination that he did
not establish the level of hardship required by § 1229b(b)(1)(D). See Sattani v.
Holder, ___ F.3d ___, 2014 WL 1420288, 3 (5th Cir. 2014); 8 U.S.C.
§ 1252(a)(2)(B)(i), (a)(2)(D). Rojo’s argument that the BIA applied an improper
legal standard by considering the hardship currently being suffered by Rojo’s
children without considering the future hardship they would suffer could have
been raised before the BIA in a motion for reconsideration. See Omari v.
Holder, 562 F.3d 314, 320 (5th Cir. 2009). Because Rojo’s legal claim was not
raised before the BIA, it is unexhausted, and we lack jurisdiction to consider
it. See id. at 318-20; § 1252(d)(1).
Rojo next challenges the IJ’s determination that he had not established
10 years of continuous physical presence for purposes of § 1229b(b)(1)(A). That
determination is a nondiscretionary decision that we do have jurisdiction to
consider. See Mireles-Valdez v. Ashcroft, 349 F.3d 213, 217 (5th Cir. 2003).
However, a court should generally remand a case to the BIA for consideration
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No. 13-60486
of an issue the BIA did not reach in the first instance. See, e.g., INS v. Orlando
Ventura, 537 U.S. 12, 16-17 (2002). A remand is unnecessary here, though. As
the decision that Rojo is not eligible for cancellation of removal on hardship
grounds would not be altered even if we were to rule favorably on his challenge
to the determination on his continuous physical presence, we need not address
Rojo’s argument that the IJ held him to too high an evidentiary burden on this
issue. See Capital Concepts Properties 85-1 v. Mutual First, Inc., 35 F.3d 170,
176 (5th Cir. 1994).
Accordingly, Rojo’s petition for review is DISMISSED to the extent that
it contains claims and arguments over which we lack jurisdiction. In all other
respects, the petition for review is DENIED.
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