Rafael Emilio Bayolo Hernandez v. U.S. Attorney General

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-10113
Non-Argument Calendar
________________________
Agency No. A023-183-108
RAFAEL EMILIO BAYOLO HERNANDEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(September 21, 2015)
Before ED CARNES, Chief Judge, TJOFLAT, and JULIE CARNES, Circuit
Judges.
PER CURIAM:
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Rafael Emilio Bayolo Hernandez seeks review of the final order of the
Board of Immigration Appeals affirming the pretermission of his application for a
suspension of deportation. Bayolo raises two contentions in his petition for
review.1 First, he contends that the BIA erred in failing to consider a Fourth
Circuit decision that he argues would allow him to apply for cancellation of
removal. Second, he contends that applying the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA) to bar his application for
suspension of deportation would be impermissibly retroactive.
I.
Bayolo is a Cuban citizen who was paroled into the United States in 1980.
See 8 U.S.C. § 1182(d)(5)(A) (“The Attorney General may . . . in his discretion
parole into the United States temporarily under such conditions as he may
prescribe only on a case-by-case basis for urgent humanitarian reasons or
significant public benefit any alien applying for admission to the United States, but
such parole of such alien shall not be regarded as an admission of the alien . . . .”).
On April 27, 1988, he pleaded no contest to possession of cocaine in Florida and
served an eleven-day jail sentence. Eight years later he applied for an adjustment
of status to become a lawful permanent resident, but his application was denied.
On June 16, 2010, the Department of Homeland Security (DHS) sent him a notice
1
Because petitioner referred to himself in the hearing before the Immigration Judge as
“Rafael Bayolo,” we will use that surname in this opinion.
2
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to appear. The notice to appear charged that he was removable from the United
States due to his conviction of a crime involving moral turpitude, the cocaine
conviction, and failure to possess a valid unexpired immigrant visa or other valid
entry document. See 8 U.S.C. § 1182(a)(2)(A)(i)(I), (a)(2)(A)(i)(II),
(a)(7)(A)(i)(I).
In his removal proceedings, Bayolo conceded before the Immigration Judge
that he is ineligible for the post-IIRIRA remedy of cancellation of removal because
of his conviction. Because of that ineligibility, he applied for suspension of
deportation, a form of relief that existed pre-IIRIRA. See Tefel v. Reno, 180 F.3d
1286, 1288–89 (11th Cir. 1999). He argued that he could apply for this now
nonexistent remedy based on the Supreme Court’s decision in INS v. St. Cyr, 533
U.S. 289, 121 S. Ct. 2271 (2001). DHS responded by moving to pretermit
Bayolo’s application for suspension of deportation on the grounds that Bayolo was
properly in removal proceedings and no binding legal authority supported his
argument that suspension of deportation remained available more than a dozen
years after the authority for it was repealed.
The IJ granted DHS’s motion to pretermit. The IJ sustained the charges of
removability for Bayolo’s cocaine conviction and his failure to possess a valid
unexpired visa or other entry document. See 8 U.S.C. § 1182(a)(2)(A)(i)(II),
(a)(7)(A)(i)(I). The IJ found no support for Bayolo’s argument that he could apply
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for suspension of deportation, given that IIRIRA became effective in 1997 and the
removal proceedings were begun in 2010. The IJ then denied Bayolo’s motion to
reconsider and ordered that he be removed from the United States.
Bayolo appealed the IJ’s decision to the BIA. He again contended that
suspension of deportation should be available to him based on St. Cyr. The BIA
rejected that contention. It found that because Bayolo’s status as a parolee would
have precluded him from applying for suspension of deportation even before
IIRIRA, it would not be impermissibly retroactive to deny him a remedy he never
had in the first place. This petition followed.
II.
Bayolo conceded before the BIA that he is not eligible to apply for
cancellation of removal. He now contends, however, that the BIA should have
considered whether he was eligible for that relief because in a footnote in its order
the BIA cited the Fourth Circuit decision Jaghoori v. Holder, 772 F.3d 764, 769,
771 (4th Cir. 2014) (holding that the same IIRIRA provision that bars Bayolo from
applying for cancellation of removal could not be applied retroactively). The
government contends that we lack subject matter jurisdiction to review Bayolo’s
claim that he is entitled to cancellation of removal because he failed to exhaust it.
See 8 U.S.C. § 1252(d)(1); Sundar v. INS, 328 F.3d 1320, 1323 (11th Cir. 2003)
(“[W]e lack jurisdiction to consider claims that have not been raised before the
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BIA.”). We review our subject matter jurisdiction de novo. Ruiz v. Gonzales, 479
F.3d 762, 765 (11th Cir. 2007).
Bayolo never asked the BIA to consider his claim that he can apply for
cancellation of removal. By failing to raise this claim before the BIA, Bayolo
failed to exhaust his administrative remedies. We therefore cannot consider
Bayolo’s claim that he is entitled to relief. See Amaya-Artunduaga v. U.S. Att’y
Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). It makes no difference that the BIA
arguably addressed the issue sua sponte by mentioning Jaghoori in a footnote. We
have no jurisdiction over claims that Bayolo, “without excuse or exception, failed
to present before the BIA, even if the BIA addressed the underlying issue sua
sponte.” Amaya-Artunduaga, 463 F.3d at 1251.
III.
Bayolo’s second claim is that applying IIRIRA to him would be
impermissibly retroactive under INS v. St. Cyr, 533 U.S. 289, 121 S. Ct. 2271(2001). DHS contends that no retroactivity problem exists because Bayolo was
never eligible for the relief he seeks, and as a result applying IIRIRA does not
attach a new legal disability to any pre-IIRIRA transaction. We have jurisdiction
to hear Bayolo’s claim because it presents a pure question of law. 8 U.S.C.
§ 1252(a)(2)(D); Ferguson v. U.S. Att’y Gen., 563 F.3d 1254, 1259 (11th Cir.
2009) (exercising jurisdiction over a similar IIRIRA retroactivity claim). We
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review the BIA’s legal conclusions de novo and its factfindings for substantial
evidence. Assa’ad v. U.S. Att’y Gen., 332 F.3d 1321, 1326 (11th Cir. 2003);
Al Najjar v. Ashcroft, 257 F.3d 1262, 1283–84 (11th Cir. 2001).
Bayolo argues that his case is factually indistinguishable from St. Cyr and
therefore, like the alien in that case (St. Cyr), he too should be allowed to apply for
a now-extinct form of relief. Bayolo, like St. Cyr, was convicted of a pre-IIRIRA
crime that rendered him deportable. St. Cyr, 533 U.S. at 293, 121 S. Ct. at 2275.
He asserts that, like St. Cyr, he would have been able to apply for deportation relief
had IIRIRA not intervened. Id. at 293, 320, 121 S. Ct. at 2275, 2290. And he
asserts that, like St. Cyr, it would be impermissibly retroactive to apply IIRIRA to
him because it would frustrate his pre-IIRIRA expectation of future relief. See id.
at 293, 121 S. Ct. at 2275. But there is a distinction that makes a world of
difference.
Bayolo is not in the same position as St. Cyr because Bayolo was never
eligible for suspension of deportation. The crux of St. Cyr was that St. Cyr was
eligible for the pre-IIRIRA relief he sought (§ 212(c) relief) notwithstanding his
conviction, and as a result applying IIRIRA would have impermissibly frustrated
his reliance on that relief. Id. at 326, 121 S. Ct. at 2293; see Ferguson, 563 F.3d at
1271 (“We . . . hold that reliance is a component of the retroactivity analysis as it
applies to aliens, deportable for criminal offenses, who wish to show that IIRIRA’s
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repeal of § 212(c) has an impermissible retroactive effect.”). Bayolo, however,
was never eligible for the relief of suspension of deportation because he was
paroled into the United States.
Before IIRIRA, when an alien violated the conditions of parole he was
subject to exclusion proceedings, not deportation proceedings. Assa’ad, 332 F.3d
at 1327; see also Landon v. Plasencia, 459 U.S. 21, 25–27, 103 S. Ct. 321, 325–26
(1982). And when an alien was subject to exclusion proceedings, suspension of
deportation was not an available remedy. Landon, 459 U.S. at 26–27, 103 S. Ct. at
326; Matter of Torres, 19 I. & N. Dec. 371, 373, 1986 WL 67717 (BIA 1986) (“It
is . . . established that an alien properly in exclusion proceedings is not entitled to
apply for a suspension of deportation, despite being present in the United States on
parole for an extensive period of time.”).
Bayolo does not contest that he was paroled into the United States. As a
parolee, the only proceeding that he could have been subject to before IIRIRA was
an exclusion proceeding, not a deportation one. Bayolo, unlike St. Cyr, was
therefore never eligible for the relief he seeks and never could have relied on its
availability. 2 Because Bayolo cannot be deprived of a remedy he never had,
2
Bayolo cites several out-of-circuit decisions to support his argument, but these cases are
all readily distinguishable because they involved aliens who were eligible for their sought-after
relief before IIRIRA’s enactment. See, e.g., Hernandez de Anderson v. Gonzales, 497 F.3d 927,
937, 944 (9th Cir. 2007); Lopez-Castellanos v. Gonzales, 437 F.3d 848, 853 (9th Cir. 2006);
Alvarez-Hernandez v. Acosta, 401 F.3d 327, 330–31 (5th Cir. 2005).
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applying IIRIRA to him does not create a retroactivity problem. His claim must
therefore be denied.
DISMISSED IN PART, DENIED IN PART.
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