Ricardo Tirado Carreno v. Eric Holder, Jr. , 538 F. App'x 533 ( 2013 )


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  •      Case: 12-60805       Document: 00512340850         Page: 1     Date Filed: 08/14/2013
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    August 14, 2013
    No. 12-60805
    Summary Calendar                        Lyle W. Cayce
    Clerk
    RICARDO TIRADO CARRENO, also known as Ricardo Tirado,
    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. A096 038 358
    Before KING, DAVIS, and ELROD, Circuit Judges.
    PER CURIAM:*
    Ricardo Tirado Carreno (Tirado) has filed a petition for review of the final
    order of the Board of Immigration Appeals (BIA) affirming the immigration
    judge’s (IJ’s) decision denying him cancellation of removal. In 2004, when he
    was 17 years old, Tirado was placed in removal proceedings and was granted
    voluntary departure. In 2009, Tirado again was placed in removal proceedings
    and he applied for cancellation of removal. Tirado contended that he met the
    continuous physical presence requirement for cancellation of removal because
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 12-60805     Document: 00512340850     Page: 2   Date Filed: 08/14/2013
    No. 12-60805
    his departure from the United States in 2004 was not voluntary. The BIA
    rejected Tirado’s argument and denied him cancellation of removal.
    Although this court is statutorily barred from reviewing the purely
    discretionary denial of cancellation of removal, the court is not precluded from
    reviewing constitutional claims or questions of law. Sung v. Keisler, 
    505 F.3d 372
    , 377 (5th Cir. 2007). The determination whether Tirado met the continuous
    physical presence requirement is one that is subject to appellate review. See
    Garcia-Melendez v. Ashcroft, 
    351 F.3d 657
    , 661 (5th Cir. 2003). We will affirm
    the decision if there is no error of law and if reasonable, substantive, probative
    evidence on the record supports the factual findings made by the BIA and the IJ.
    
    Id.
     Reversal is warranted only if Tirado “provides evidence so compelling that
    no reasonable fact-finder could conclude against it.” 
    Id.
     (internal quotation
    marks and citation omitted). We will defer to the IJ’s adverse credibility
    findings unless, from the totality of the circumstances, it is plain that no
    reasonable fact finder could make such an adverse credibility ruling. Wang v.
    Holder, 
    569 F.3d 531
    , 538 (5th Cir. 2009).
    The Attorney General has the discretion to cancel the removal of a
    nonpermanent resident alien who, in addition to meeting other requirements,
    “has been physically present in the United States for a continuous period of not
    less than 10 years immediately preceding the date of such application[.]”
    8 U.S.C. § 1229b(b)(1)(A). The alien bears the burden of proving eligibility for
    cancellation of removal. See 
    8 C.F.R. § 1240.8
    (d); Cabrera v. Holder, 419 F.
    App’x 437, 438 (5th Cir. 2011). Voluntary departure, “whether offered at the end
    of immigration proceedings or earlier at the border . . . is granted an alien as a
    form of clemency in return for his agreeing to relinquish his illegal presence.”
    Mireles-Valdez v. Ashcroft, 
    349 F.3d 213
    , 218 (5th Cir. 2003). “When the
    Attorney General grants voluntary departure, the alien cannot later claim that
    he did so while continuing his continuous physical presence . . . in a future
    adjudication for discretionary relief.” 
    Id.
    2
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    No. 12-60805
    Tirado raises a number of contentions for the first time in this petition for
    review. He contends that pertinent immigration regulations mandate that once
    removal proceedings have been initiated, voluntary departure can be granted or
    denied by an IJ only, not by the Attorney General. Tirado also contends that
    once his prior removal proceedings began, his failure to attend the removal
    hearing required the IJ to enter a removal order against him in absentia.
    This court has jurisdiction to review final orders of removal only if the
    petitioner has exhausted all administrative remedies available.          Omari v.
    Holder, 
    562 F.3d 314
    , 318 (5th Cir. 2009). “Petitioners fail to exhaust their
    administrative remedies as to an issue if they do not first raise the issue before
    the BIA, either on direct appeal or in a motion to reopen.” 
    Id.
     “This exhaustion
    requirement applies to all issues for which an administrative remedy is available
    to the petitioner as of right.” 
    Id.
     (internal quotation marks and citation omitted).
    Thus, if the petitioner could have argued the claim before the BIA and the BIA
    had an adequate mechanism to address and remedy the claim, the petitioner
    must first allow the BIA an opportunity to correct its own error before
    intervention by the courts. 
    Id. at 318-19
    ; Lopez-Dubon v. Holder, 
    609 F.3d 642
    ,
    644 (5th Cir. 2010).
    Tirado argues that he has merely raised expanded arguments and theories
    relating to his same primary claim. Citing Carranza-De Salinas v. Gonzales,
    
    477 F.3d 200
    , 206-07 (5th Cir. 2007), Tirado contends that this court
    allows petitioners to bring modified or alternative theories supporting claims
    that were before the BIA in a less developed form. However, unlike in Carranza-
    De Salinas, Tirado is presenting this court with entirely new reasons why the
    IJ’s determination was error. As noted in Omari, 
    562 F.3d at 322
    , the petitioner
    in Carranza-De Salinas made “some concrete statement before the BIA to which
    [she] could reasonably tie [her] claims before this court.” We find that Tirado’s
    newly raised arguments are not similarly tied to the claims he made before the
    BIA. Accordingly, his claims are unexhausted. See Omari, 
    562 F.3d at 318-322
    .
    3
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    Tirado also argues for the first time in this petition that the BIA
    committed legal error by making three distinct fact findings. He argues that
    immigration regulations prohibit the BIA from conducting its own fact finding.
    Allegations of impermissible fact findings by the BIA must first be brought to the
    BIA in a motion for reconsideration. 
    Id. at 319-20
    . Failure to do so constitutes
    failure to exhaust the issue. 
    Id. at 320
    . Tirado’s argument that this court
    should not follow its precedent requiring exhaustion is without merit.
    As to the remaining viable arguments in support of Tirado’s claim that the
    Government erred in determining that he made a voluntary departure in 2004,
    we conclude that the determination is supported by reasonable, substantive
    evidence.   See Garcia-Melendez, 
    351 F.3d at 661
    .          On his application for
    cancellation of removal, Tirado identified his 2004 departure as a voluntary
    return and he indicated that he had departed the United States pursuant to a
    grant of voluntary departure. Further, additional documents showed that
    Tirado had been placed in formal removal proceedings in 2004 and that he was
    granted voluntary departure. Tirado makes no efficacious challenge to this
    documentary evidence. Nor does he set forth contrary evidence so compelling
    that reversal is warranted. 
    Id.
     Further, given the inconsistencies between
    Tirado’s testimony at the hearing and his responses on the cancellation
    application, Tirado has not shown the IJ’s credibility determination to be plainly
    unreasonable. See Wang, 
    569 F.3d at 538
    .
    PETITION DENIED.
    4