Alain Cuevas-Nuno v. William Barr ( 2020 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0250p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ALAIN CUEVAS-NUNO, ┐
Petitioner, │
│
> No. 20-3034
v. │
│
WILLIAM P. BARR, Attorney General, │
Respondent. │
┘
On Petition for Review from the Board of Immigration Appeals;
No. A 205 298 571.
Decided and Filed: August 7, 2020
Before: ROGERS, KETHLEDGE, and NALBANDIAN, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Peter Constantine M. Maniatis, SAENZ & MANIATIS, PLLC, Nashville,
Tennessee, for Petitioner. Sarah A. Byrd, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
_________________
OPINION
_________________
NALBANDIAN, Circuit Judge. The Immigration and Nationality Act makes clear that
parties must exhaust their claims with the Board of Immigration Appeals before we can review
them. This gives the Departments of Justice and Homeland Security “a full opportunity to
consider a petitioner’s claims, [and] avoid[s] premature interference with the agenc[ies’]
processes[.]” Ramani v. Ashcroft, 378 F.3d 554, 559 (6th Cir. 2004) (citation omitted). Alain
Cuevas-Nuno failed to administratively exhaust each of the claims he brings before us. So we
DISMISS his petition for lack of jurisdiction.
No. 20-3034 Cuevas-Nuno v. Barr Page 2
I.
Cuevas-Nuno, a native of Mexico, entered the United States illegally on an unknown
date. In 2012, the Department of Homeland Security (“DHS”) charged Cuevas-Nuno as subject
to removal from the United States, under 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the
United States without being admitted or paroled. It personally served him with a notice to
appear that included the following warning:
Failure to appear at your hearing except for exceptional circumstances may result
in . . . [y]our hearing [] be[ing] held in your absence[.] . . . [And a]n order of
removal will be entered against you if the [DHS] establishe[s] by clear,
unequivocal[,] and convincing evidence that a) you or your attorney has been
provided this notice and b) you are removable.
(AR 132–33.) Cuevas-Nuno attended his first master hearing, admitted the allegations against
him, and conceded removability as charged. He then applied for cancellation of removal and
made a successful motion to transfer his case from Virginia to the Immigration Court in
Memphis, Tennessee. That court set Cuevas-Nuno’s next master hearing for October 4, 2017
and sent a notice of the hearing to Cuevas-Nuno’s counsel of record.
Cuevas-Nuno did not attend his second hearing. So the Immigration Judge conducted an
in absentia hearing, found Cuevas-Nuno’s cancellation of removal application abandoned,
dismissed it for lack of prosecution, and ordered Cuevas-Nuno removed to Mexico. Sixteen days
later, Cuevas-Nuno moved to reopen. In support of this motion he attached an affidavit, where
he declared: “I missed my Master Calendar Hearing on October 4th, 2017 in Tennessee
Immigration Court because I became confused about the date of my hearing.” (AR 68.) DHS
opposed this motion, arguing that an Immigration Judge can only reopen an in absentia removal
order if the alien shows that his failure to appear was because of “exceptional circumstances” as
defined by statute and regulation; and confusion about the hearing date is not an exceptional
circumstance. The Immigration Judge agreed and denied Cuevas-Nuno’s motion to reopen,
finding this court’s decision in Acquaah v. Holder, 589 F.3d 332 (6th Cir. 2009), controlling.
The Immigration Judge also denied Cuevas-Nuno’s motion because he failed to attach his
application for cancellation of removal or any other evidence of his eligibility for cancellation of
removal, as required by 8 C.F.R. §§ 1003.2(c)(1), 1003.23(b)(3).
No. 20-3034 Cuevas-Nuno v. Barr Page 3
Cuevas-Nuno then appealed to the Board of Immigration Appeals (“BIA”). In a three-
page brief he raised only one argument: That the Immigration Judge erred in failing to exercise
her sua sponte discretion to reopen her removal order because Cuevas-Nuno’s confusion about
his hearing date constitutes an exceptional situation. The brief attempts to explain Cuevas-
Nuno’s alleged confusion about his hearing date. It says Cuevas-Nuno told his counsel:
[E]ven though he knew he had a Master Calendar Hearing on October 4, 2017,
when he called [counsel’s] office to confirm his hearing date and time he was told
that his court date was on a different day. Thus, his confusion. [Counsel had] no
reasons to believe that he will be [sic] lying about this, and unfortunately the
person who was handling immigration clients at the time was discharged from
[counsel’s] firm around mid-January 2018.
(AR 7.) The BIA found Cuevas-Nuno’s argument unavailing and affirmed the Immigration
Judge without opinion. This petition follows.
II.
Cuevas-Nuno raises four claims in his petition for review: That his counsel’s employee
allegedly provided Cuevas-Nuno an incorrect hearing date, and this error (1) constitutes an
exceptional circumstance that justifies reopening the Immigration Judge’s in absentia removal
order under 8 U.S.C. § 1229a(b)(5)(C), (2) amounts to a lack of notice sufficient to reopen the
removal order under 8 U.S.C. § 1229a(b)(5)(C)(ii), and (3) violates Cuevas-Nuno’s due process
right to be heard. His fourth claim is that the Immigration Judge erred by denying Cuevas-
Nuno’s motion for failing to submit evidence supporting his eligibility for cancellation of
removal under 8 C.F.R. § 1003.2(c)(1) because Cuevas-Nuno did not move to reopen so that he
could submit an application for relief. But we lack jurisdiction for all these claims.1 We have
jurisdiction to “review a final order of removal only if . . . the alien has exhausted all
administrative remedies available to the alien as of right[.]”2 8 U.S.C. § 1252(d)(1); see Hassan
1
The “Statement of the Issues” in Cuevas-Nuno’s brief raises a fifth issue: “Whether Petitioner should be
required to follow the procedural requirements of [Matter of] Lozada[, 19 I. & N. Dec. 637 (BIA 1988),] in arguing
ineffective assistance of counsel as an exceptional circumstance when it is undisputed that his trial counsel gave
Petitioner an incorrect hearing date.” (Pet’r’s Br. at 6.) But the brief discusses this issue within his claim that
exceptional circumstances justify reopening the Immigration Judge’s removal order. So we treat the Lozada
arguments as part of the exceptional circumstances claim, rather than standalone claims.
No. 20-3034 Cuevas-Nuno v. Barr Page 4
v. Gonzales, 403 F.3d 429, 432 (6th Cir. 2005). And in Ramani v. Ashcroft, we interpreted this
exhaustion requirement to require precision—it is stricter “than merely requiring an alien to
exhaust all avenues of appeal; [it] further require[s] the alien to preserve each claim by
presenting it to the BIA.” 378 F.3d at 559 (emphasis added).3
We look to the alien’s brief before the BIA to determine which claims the alien
adequately raised before that body.4 See Hassan, 403 F.3d at 433 n.5 (“[W]here the alien does
file a separate written brief, ‘all issues not raised in an appellant’s briefs [are waived], even if the
issue has been raised in the notice of appeal.’” (quoting Ramani, 378 F.3d at 559)). And Cuevas-
Nuno’s BIA brief doesn’t mention lack of notice under 8 U.S.C. § 1229a(b)(5)(C)(ii), his due
process right to be heard, or his failure to submit evidence supporting his eligibility for
cancellation of removal. Thus, Cuevas-Nuno failed to exhaust his second, third, and fourth
claims.
The brief does argue that Cuevas-Nuno’s confusion about his hearing date constitutes an
exceptional situation that justifies reopening the Immigration Judge’s removal order. Still, the
Government argues we lack jurisdiction because Cuevas-Nuno’s BIA brief only discusses
exceptional situations within the context of its argument that the Immigration Judge erred in
failing to exercise her sua sponte discretion to reopen her removal order—not a motion to reopen
under 8 U.S.C. § 1229a(b)(5)(C)(i). We agree. It’s well settled that we lack jurisdiction to
2
There is some debate as to whether § 1252(d)(1)’s exhaustion requirement is truly “jurisdictional.” See
Saleh v. Barr, 795 F. App’x 410, 421–24 (6th Cir. 2019) (Murphy, J., concurring). But here the government
contests Cuevas-Nuno’s failure to exhaust his arguments before the BIA. So even if the exhaustion requirement is
instead a claims-processing rule, it doesn’t affect the outcome of this case.
3
We also require issue exhaustion when agencies combine a general statute requiring “‘administrative
remedies’ to be ‘exhausted’” with regulations requiring identification of specific issues in a notice of administrative
appeal. Island Creek Coal Co. v. Bryan, 937 F.3d 738, 746–47 (6th Cir. 2019) (citing Woodford v. Ngo, 548 U.S.
81, 90–91 (2006)). On top of 8 U.S.C. § 1252(d)(1), federal regulations require all notices of appeal filed with the
BIA to include a statement of the basis of appeal, which “must specifically identify the findings of fact, the
conclusions of law, or both, that are being challenged.” 8 C.F.R. § 1003.3(b). This regulation clarifies that
§ 1252(d)(1) requires issue exhaustion. Cf. Island Creek Coal Co., 937 F.3d at 749 (holding that 20 C.F.R.
§ 802.211(a)’s requirement that petitions for review identify “specific issues to be considered” on appeal imposes an
issue exhaustion requirement).
4
And even though the BIA affirmed without opinion, “[t]he streamlined-affirmance-without-opinion
procedure is not a dismissal, but instead a review of the merits of an appeal.” Hassan, 403 F.3d at 433 (citing Denko
v. INS, 351 F.3d 717, 729 (6th Cir. 2003)).
No. 20-3034 Cuevas-Nuno v. Barr Page 5
review a BIA decision declining to exercise its discretionary authority to sua sponte reopen a
removal order. Rais v. Holder, 768 F.3d 453, 460 (6th Cir. 2014). And that’s the only argument
Cuevas-Nuno raised before the BIA. Unless it tells us otherwise, we presume the BIA decides
appeals based on the arguments presented to it, not arguments neither party raises. See Hassan,
403 F.3d at 433 (holding that by summarily affirming an Immigration Judge’s opinion, the BIA
necessarily finds that the alien provided meaningful guidance to the BIA of the precise issues
they contest on appeal); Pilica v. Ashcroft, 388 F.3d 941, 949 (6th Cir. 2004) (“Absent evidence
to the contrary, this Court presumes that the BIA applied the correct standard of review.”);
Denko v. INS, 351 F.3d 717, 729 (6th Cir. 2003) (By issuing a summary affirmance “the BIA
member agrees with the result reached by the IJ, . . . determines that any errors in the IJ’s
decision are harmless or nonmaterial[,] and that the issue raised is controlled by precedent and is
not a novel issue[.]”). So Cuevas-Nuno is asking us to review a BIA decision outside our
jurisdiction.
That said, “presenting an issue in a motion to reopen sua sponte is sufficient to exhaust
that issue.” Gor v. Holder, 607 F.3d 180, 186 (6th Cir. 2010). But Cuevas-Nuno’s argument
that the incorrect notice his counsel’s employee gave him constitutes an “exceptional situation”
sufficient for the Immigration Judge to sua sponte reopen her removal order is different from the
issue of whether that conduct constitutes an “exceptional circumstance” sufficient to reopen the
order under § 1229a(b)(5)(C)(i). The “exceptional circumstances” necessary to reopen under
§ 1229a(b)(5)(C)(i) are statutorily defined. See 8 U.S.C. § 1229a(e)(1). The BIA, on the other
hand, judicially created the “exceptional situation” prerequisite to its discretionary authority to
sua sponte reopen removal orders. See In re J- J-, 21 I. & N. Dec. 976, 984 (BIA 1997). And
there isn’t “any statutory, regulatory, or case law definition” of that term. Bonilla v. Lynch,
840 F.3d 575, 586 (9th Cir. 2016) (quoting Ekimian v. INS, 303 F.3d 1153, 1156 (9th Cir.
2002)). Finally, in determining its jurisdiction, the Third Circuit rejected the argument that the
terms’ meanings are synonymous. Dhanoa v. Attorney Gen. of the U.S., No. 14-3182, 2015 WL
3514730, at *2 n.4 (3d Cir. June 5, 2015). All in all, the available evidence shows that
No. 20-3034 Cuevas-Nuno v. Barr Page 6
“exceptional circumstances” and “exceptional situation” don’t mean the same thing. So we hold
that raising one of these claims before the BIA doesn’t exhaust the other. 5
It’s clear that Cuevas-Nuno and his attorney were on notice of the legal distinction
between “exceptional circumstances” and an “exceptional situation” before they filed their
appeal with the BIA. In opposition to his motion to reopen before the Immigration Judge, the
DHS cited § 1229a(b)(5)(C)(i)’s “exceptional circumstances” requirement and its statutory
definition. What’s more, the Immigration Judge’s order denying Cuevas-Nuno’s motion to
reopen treated the motion as one to reopen based on exceptional circumstances. It also explained
the definition of and requirements for “exceptional circumstances” under § 1229a(b)(5)(C)(i) and
why Cuevas-Nuno’s circumstances don’t qualify. Yet Cuevas-Nuno chose not to respond to any
of these arguments in his BIA brief. And he didn’t cite a single case discussing “exceptional
circumstances,” or even § 1229a(b)(5)(C). Instead, his brief cites a litany of cases discussing
Immigration Judges and the BIA’s discretionary authority to sua sponte reopen removal orders
and the regulation codifying this authority.
True, BIA precedent holds that ineffective assistance of counsel can amount to an
“exceptional circumstance” (and the IJ here treated Petitioner’s argument as one under
“exceptional circumstances”). Matter of Grijalva, 21 I. & N. Dec. 472, 473–74 (BIA 1996). But
to meet their burden of establishing exceptional circumstances in this specific context, petitioners
must satisfy each element of the ineffective assistance framework set out in Matter of Lozada,
19 I. & N. Dec. 637 (BIA) (1988). Matter of Grijalva, 21 I. & N. Dec. at 473–74. Cuevas-Nuno,
of course, made no attempt to argue or establish Lozada’s requirements. Instead, he raises his
ineffective assistance argument for the first time in his briefing to this court. Cuevas-Nuno’s
motion to reopen mentions only that “he became confused about the date [of his hearing].”
(AR 63.) So naturally the Immigration Judge’s order doesn’t discuss ineffective assistance.
Then, despite describing for the first time Cuevas-Nuno’s confusion as the result of ineptitude by
counsel’s staff, his BIA brief also omits any reference to ineffective assistance and fails to cite
5
To be sure, Petitioner’s BIA brief uses the phrase “exception circumstances” in a couple of places. But it
only cites legal authority pertaining to a sua sponte reopening warranted by an “exceptional situation.”
No. 20-3034 Cuevas-Nuno v. Barr Page 7
Lozada. So he didn’t exhaust his exceptional circumstances claim by arguing ineffective
assistance either.
At bottom, Cuevas-Nuno’s BIA brief argued only that his exceptional situation warranted
sua sponte reopening of his removal proceedings. But that’s not the same as arguing that the
Immigration Judge should have reopened her removal order under § 1229a(b)(5)(C) because of
exceptional circumstances. So Cuevas-Nuno abandoned the latter. And abandoned claims aren’t
exhausted. Irhibayeva v. Holder, 549 F. App’x 421, 427 (6th Cir. 2013). Thus, we have no
jurisdiction over any of the claims Cuevas-Nuno raises.6
III.
Because we lack jurisdiction, we DISMISS Cuevas-Nuno’s petition for review.
6
It appears that Cuevas-Nuno changed counsel for this appeal. We express no opinion on whether he can
file a second motion to reopen based on his ineffective-assistance theory.