Elias Alfonso Juarez-Gonzalez v. Atty Gen USA

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-1790
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ELIAS ALFONSO JUAREZ-GONZALEZ,
PETITIONER
v.
ATTORNEY GENERAL UNITED STATES,
RESPONDENT
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
Immigration Judge: Honorable Frederic Leeds
(Agency No. A075-445-182)
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 7, 2010
Before: SCIRICA, Chief Judge, SMITH and WEIS, Circuit Judges
(Opinion filed: April 9, 2010)
OPINION
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PER CURIAM.
Elias Alfonso Juarez-Gonzalez, a citizen and native of Mexico, became a
lawful permanent resident of the United States in 1997. On January 3, 2002, the Superior
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Court of New Jersey, Hudson County, convicted Juarez-Gonzalez of criminal restraint in
the third degree in violation of N.J. Stat. Ann. § 2C:13-2. Juarez-Gonzalez subsequently
departed the United States and, upon his return, the Department of Homeland Security
charged him as removable because he was convicted of a crime involving moral
turpitude. Before the Immigration Judge (“IJ”) Juarez-Gonzalez conceded removability
and applied for a waiver of inadmissibility under 8 U.S.C. § 1182(h). The IJ found that
Juarez-Gonzalez had committed a violent or dangerous crime. As a result, the IJ
determined that he could not qualify for a waiver of inadmissibility unless he
demonstrated exceptional and extremely unusual hardship. See 8 C.F.R. § 1212.7(d).
Ultimately, the IJ held that Juarez-Gonzalez failed to show the requisite hardship. On
February 19, 2009, the Board of Immigration Appeals (“BIA”) affirmed and dismissed
Juarez-Gonzalez’s appeal. Juarez-Gonzalez has filed a petition for review.
The Government has filed a motion to dismiss for lack of jurisdiction. The
Government correctly points out that we do not have jurisdiction to review the Attorney
General’s decision not to grant a waiver of inadmissibility. See 8 U.S.C.
§ 1252(a)(2)(B)(I); 8 U.S.C. § 1182(h); see also Sukwanputra v. Gonzales, 434 F.3d 627,
634 (3d Cir. 2006) (“[D]espite the changes of the REAL ID Act, factual or discretionary
determinations continue to fall outside the jurisdiction of the court of appeals entertaining
a petition for review.”) We, however, retain the jurisdiction to review constitutional
claims and questions of law. 8 U.S.C. § 1252(a)(2)(D); Jarbough v. Att’y Gen., 483 F.3d
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184, 188 (3d Cir. 2007). As we explain further below, while Juarez-Gonzalez raises
questions of law, we find that he has not properly exhausted these claims before the IJ
and the BIA. See 8 U.S.C. § 1252(d)(1); Hua Wu v. Att’y Gen., 571 F.3d 314, 317 (3d
Cir. 2009) (per curiam). Therefore, we will grant the Government’s motion to dismiss.
Juarez-Gonzalez raises two arguments in his petition for review. First, he
contends that the BIA should have applied a categorical analysis to determine whether his
conviction was a crime of moral turpitude and a “dangerous” crime. (Petr’s Br. at 16.)
Juarez-Gonzalez, however, failed to raise this argument before the IJ. Indeed, as the
Government points out, Juarez-Gonzalez’s counsel admitted that his crime was the type
of crime which triggers the “exception and extremely unusual hardship” standard for
granting a waiver of inadmissability. (A.R. at 154-55.) Juarez-Gonzalez also fails to
point to any persuasive authority which required the IJ to apply a categorical analysis to
determine whether his crime qualified as a dangerous crime under 8 C.F.R. § 1212.7.
Moreover, while we apply the categorical analysis in the crimes against moral turpitude
analysis, Juarez-Gonzalez did not challenge Government’s finding that he was convicted
of a crime of moral turpitude before the IJ, and he may not do so for the first time in this
Court. Hua Wu 571 F.3d at 317. Juarez-Gonzalez similarly failed to raise his ineffective
assistance of counsel claim before the IJ or the BIA. Therefore, we lack jurisdiction over
that claim as well.
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For the foregoing reasons, we will grant the Government’s motion to
dismiss for a lack of jurisdiction and dismiss the petition for review.
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