Leonardo Esparza-Diaz v. U.S. Attorney General

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-11840
Non-Argument Calendar
________________________
Agency No. A205-358-855
LEONARDO ESPARZA-DIAZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(April 2, 2015)
Before MARTIN, KRAVITCH and ANDERSON, Circuit Judges.
PER CURIAM:
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Leonardo Esparza-Diaz petitions this court to review the Board of
Immigration Appeals’ (BIA) final order affirming the Immigration Judge’s (IJ)
denial of his application for cancellation of removal, 8 U.S.C. § 1229b(B). For the
reasons that follow, we deny the petition in part and dismiss it in part.
I.
Esparza-Diaz entered the United States without being admitted or paroled in
1989. 1 He eventually moved to Florida, where he was employed, paid taxes, got
married, and had children. His parents came to the United States as lawful
permanent residents in 2011.
In 2012, the Department of Homeland Security issued Esparza-Diaz a Notice
to Appear, charging him as removable due to his illegal entry under 8 U.S.C.
§ 1182(a)(6)(A)(i). At his hearing before an IJ, Esparza-Diaz conceded his
removability and applied for cancellation of removal. 2 The government opposed
relief from removal on the ground that Esparza-Diaz was not eligible for
cancellation because he had been convicted of a disqualifying offense, specifically,
a firearm offense.
The evidence of Esparza-Diaz’s conviction included documents from the
Indian River County Sheriff’s Office indicating that Esparza-Diaz had been
1
Esparza-Diaz’s application for cancellation of removal indicates that he entered in 1989, but a
handwritten note on the Notice to Appear states that he entered in 1999. Because the conviction
about which Esparza-Diaz argues occurred in 1995, we assume the 1989 date is correct.
2
Esparza-Diaz also applied for withholding of removal and relief from removal under the
Convention Against Torture, but this application is not before us and we do not discuss it further.
2
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arrested in 1995 for carrying a concealed weapon and selling or giving alcohol to a
minor. The case was later transferred to the County Court of Indian River under a
“felony reduction,” and Esparza-Diaz was convicted of open carrying of a firearm.
The IJ concluded that Esparza-Diaz was ineligible for cancellation of
removal based on this conviction. The IJ then addressed Esparza-Diaz’s counsel:
IJ: You agree with that?
Counsel: I....
IJ: The — for the legal position on, on, on the charge?
And then is we pretermit, does he still want to
continue with his withholding?
Counsel: He doesn’t have relief, it’s just for withholding.
...
Counsel: We’ll take an order.
Based on this exchange, the IJ concluded that Esparza-Diaz conceded he was
ineligible for relief, and the IJ ordered his removal.
Esparza-Diaz appealed to the BIA. In his Notice of Appeal, he wrote
It is Respondent’s position that the IJ erred as a matter of law in
concluding that Respondent’s conviction for the offense of Possession
of a Firearm made the respondent ineligible for the relief sought. A
reading of the Statute by itself under the “categorical approach” is not
sufficient to warrant a conclusion that Respondent’s conviction made
him ineligible for the relief sought. The IJ erred in using the
“categorical approach.” The “modified categorical approach” should
have been used in this case.
Then, in his brief to the BIA, Esparza-Diaz argued that the IJ “failed to do a
proper analysis of the circumstances behind [his] conviction,” and “failed to
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analyze the statute to see if it indeed was a conviction pursuant to Section
237(a)(2)(C).”
The BIA dismissed the appeal, finding that Esparza-Diaz had not met
his burden to show he was eligible for cancellation of removal. The BIA
concluded, “It is undisputed that respondent was convicted of carrying a
concealed firearm,” and that Esparza-Diaz did not argue that his conviction
was not a firearm offense. Esparza-Diaz now seeks review before this court.
II.
The government argues that Esparza-Diaz failed to exhaust his claims before
the BIA, thereby depriving us of jurisdiction to review his claim. Esparza-Diaz
contends that the BIA erred by affirming the IJ’s decision because his 1995
conviction was not a disqualifying firearm offense, as he was convicted under a
divisible statute that contained both firearm offenses and non-firearm offenses. He
further contends that the IJ and BIA should have applied the law under
IMMACT90, rather than IIRIRA, because his conviction pre-dated IIRIRA.
Finally, he states that he should not be penalized for the ineffective assistance of
his counsel.
III.
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We review questions of our subject-matter jurisdiction de novo. Ruiz v.
Gonzales, 479 F.3d 762, 765 (11th Cir. 2007).3 We lack jurisdiction to consider a
claim raised in a petition for review unless the petitioner has exhausted his
administrative remedies with respect thereto. See 8 U.S.C. § 1252(d)(1); see also
Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006)
(stating that, “absent a cognizable excuse or exception, [this Court] lack[s]
jurisdiction to consider claims that have not been raised before the BIA”) (citations
and quotation omitted). To properly raise a claim before the BIA, the petitioner
must mention the issue and discuss its merits, or at least contest the basis for the
IJ’s decision. See Alim v. Gonzales, 446 F.3d 1239, 1253 (11th Cir. 2006)
(concluding that the petitioner failed to exhaust his cancellation-of-removal claim
because, in his appeal to the BIA, the petitioner “never discussed the merits of his
application for cancellation of removal, let alone the IJ’s basis for denying it”).
Our review of the Notice of Appeal and Esparza-Diaz’s brief to the BIA
establish that Esparza-Diaz sufficiently alleged the IJ’s error before the BIA. Alim,
446 F.3d at 1253. Accordingly, we conclude that Esparza-Diaz exhausted his
argument that the IJ erred by finding he was ineligible for relief based on his prior
conviction.
3
By statute, our jurisdiction is limited. See 8 U.S.C. § 1252(a)(2)(C). Nevertheless, we retain
jurisdiction to consider questions of law such as the one raised here. See 8 U.S.C. §
1252(a)(2)(D).
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IV.
Turning to the merits, we will only review the BIA decision, except to the
extent that it expressly adopts the IJ’s opinion, in which case we will also review
the IJ’s decision. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). If
the BIA explicitly agrees with particular findings of the IJ, we review both the
BIA’s and IJ’s conclusions regarding those issues. Ayala v. U.S. Att’y Gen., 605
F.3d 941, 948 (11th Cir. 2010). In this case, the BIA expressly agreed with the IJ’s
conclusion that Esparza-Diaz had been convicted of a disqualifying firearm
offense. Accordingly, we will review both opinions.
We review de novo questions of law. Accardo v. U.S. Att’y Gen., 634 F.3d
1333, 1335-36 (11th Cir. 2011). Review of a removal order is conducted only on
the administrative record on which the removal order is based, and we lack the
authority to remand a case to the BIA to consider new evidence. See 8 U.S.C. §
1252(a)(1) and (b)(4)(A); Al Najjar, 257 F.3d at 1278-79, 1281 (stating the general
rule that appellate courts “may not go outside of the administrative record” and
explaining that the court is statutorily precluded from remanding to the BIA for
consideration of new evidence). Moreover, Esparza-Diaz argues for the first time
in his reply brief that we should remand for consideration of new evidence. We do
not consider arguments raised for the first time in a reply brief. Big Top Koolers,
Inc. v. Circus-Man Snacks, Inc., 528 F.3d 839, 844 (11th Cir. 2008).
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The IJ’s factual determinations are reviewed under a substantial evidence
standard, and we will affirm the IJ’s decision so long as it is supported by
reasonable, substantial, and probative evidence on the record considered as a
whole. De Santamaria v. U.S. Att’y Gen., 525 F.3d 999, 1006 (11th Cir. 2008).
Under this test, the IJ’s decision can be reversed only if the record compels a
reasonable fact finder to conclude otherwise. Id.The Attorney General may cancel removal of a non-permanent resident alien
who is inadmissible or deportable if the alien meets certain conditions. Relevant to
this case, Esparza-Diaz must not have been convicted of one of the enumerated
offenses. 8 U.S.C. § 1229b(b)(1). The enumerated disqualifying offenses include
any conviction “under any law of purchasing, selling, offering for sale,
exchanging, using, owning, possessing, or carrying . . . any weapon, part, or
accessory which is a firearm.” 8 U.S.C. §§ 1227(a)(2), 1129b(b)(1)(C).
A respondent “charged with deportability shall be found to be removable if
the Service proves by clear and convincing evidence that the respondent is
deportable as charged.” 8 C.F.R. § 1240.8(a). When requesting relief from
removal, the respondent bears the burden of proving his eligibility for relief. 8
C.F.R. § 1240.8(d).
Here, the government submitted records from state and county courts
showing that Esparza-Diaz was initially charged with carrying a concealed weapon
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and that the case was transferred to county court where he was sentenced for open
carrying of a firearm. Esparza-Diaz did not present any evidence to the IJ or to the
BIA challenging this finding. In fact, at no time before the IJ or BIA did he even
identify the Florida Statute under which he was convicted. 8 U.S.C. § 1252(a)(1)
and (b)(4)(A); Al Najjar, 257 F.3d at 1278-79, 1281. Accordingly, any new
evidence regarding his statute of conviction is not properly before us.
The BIA adopted the IJ’s conclusion that Esparza-Diaz had previously been
convicted of a disqualifying firearm offense, and this conclusion was supported by
substantial evidence. The sheriff’s office and court documents demonstrate that
Esparza-Diaz had been charged with and convicted of a firearm-related offense.
The IJ and BIA found that Esparza-Diaz conceded through counsel that his prior
conviction constituted a disqualifying offense, and Esparza-Diaz has never argued
that he was not convicted of a firearms offense. 4 The record does not compel a
reasonable factfinder to conclude otherwise. De Santamaria, 525 F.3d at 1006. As
such, this claim does not present a basis for us to grant Esparza-Diaz’s petition for
review. 5
4
Based on the exchange between the IJ and Esparza-Diaz’s counsel, we are not convinced that
counsel conceded Esparza-Diaz’s ineligibility. But we note that Esparza-Diaz has never argued
that he was not convicted of a firearms offense, nor has he challenged the IJ’s and BIA’s finding
that he conceded ineligibility. Rather, his arguments have challenged the sufficiency of the
evidence before the IJ and the manner of the IJ’s analysis.
5
Even if we were to review the conviction using the modified categorical approach, we would
reach the same conclusion as the IJ and BIA. See Donawa v. U.S. Att’y Gen., 735 F.3d 1275,
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V.
Finally, before the BIA, Esparza-Diaz did not raise his claims regarding
ineffective assistance of counsel, that IIRIRA does not apply because he was
convicted prior to the date of its enactment, or that the statute under which he was
convicted was divisible. Thus, these unexhausted claims are not properly before
us. Amaya-Artunduaga, 463 F.3d at 1250.
PETITION DENIED in part, DISMISSED in part.
1280 (11th Cir. 2013) (applying modified approach to divisible statute). The record of
conviction clearly indicates that Esparza-Diaz was convicted of and sentenced for open carrying
of a firearm. There can be little dispute that such an offense qualifies as a firearm offense under
8 U.S.C. §§ 1227(a)(2), 1129b(b)(1)(C).
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