Juan Carlos Romero-Escobar v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION FEB 20 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN CARLOS ROMERO-ESCOBAR, Nos. 13-71801, 13-73289
Agency No. A043-735-880
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of Orders of the
Board of Immigration Appeals
Submitted February 6, 2015**
San Francisco, California
Before: TALLMAN and RAWLINSON, Circuit Judges, and DEARIE, Senior
District Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Raymond J. Dearie, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
Juan Carlos Romero-Escobar (“Romero”), a native and citizen of El
Salvador, petitions for review of two orders by the Board of Immigration Appeals
(“BIA”). First, the BIA dismissed his appeal from an Immigration Judge’s removal
order for lack of jurisdiction, finding that Romero had waived his right to appeal
and determining that Romero had not contested the validity of that waiver. Romero
appeals in No. 13-71801. Second, the BIA denied Romero’s motion to reopen and
reconsider, finding that Romero’s waiver of his right to appeal had been
“considered and intelligent,” and therefore declining to reach Romero’s remaining
contentions. Romero appeals in No. 13-73289.
We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions
of law; we review for abuse of discretion the denial of a motion to reopen.
Mohammed v. Gonzales, 400 F.3d 785, 791–92 (9th Cir. 2005). We dismiss in part
and deny in part the petition for review.
First, this Court lacks jurisdiction over the petition for review of the BIA’s
dismissal of Romero’s appeal. Romero’s waiver of his right to appeal constitutes a
failure to exhaust his administrative remedies. See 8 U.S.C. § 1252(d)(1); Barron
v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). Furthermore, Romero made no
argument in his appeal that the waiver was not “considered and intelligent.” See
Brown v. Holder, 763 F.3d 1141, 1146 (9th Cir. 2014) (“[Petitioner] argues to us
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that his waiver of appeal before the [immigration judge] was not knowing and
intelligent. . . . On appeal to the BIA, however, [petitioner] did not claim that the
waiver was not knowing and voluntary, and therefore we may not review this
claim.”).
Romero’s argument that the BIA erroneously construed certain key
regulations as jurisdictional is unavailing.
Second, the BIA acted within its discretion when it denied Romero’s motion
to reopen and reconsider. Romero failed to establish that his waiver of the right to
appeal the Immigration Judge’s decision was not “considered and intelligent.” See
8 C.F.R. § 1003.2; Bhasin v. Gonzales, 423 F.3d 977, 984 (9th Cir. 2005); see also
Biwot v. Gonzales, 403 F.3d 1094, 1098 (9th Cir. 2005) (waiver of right to appeal
must be “considered and intelligent”). Also, the Board properly observed that
Romero’s motion relied on legal arguments that he could have raised in his direct
appeal. See 8 C.F.R. § 1003.2(c)(1) (explaining that “[a] motion to reopen
proceedings shall not be granted unless it appears to the [BIA] that evidence sought
to be offered is material and was not available and could not have been discovered
or presented at the former hearing.”).
Nor are we persuaded by Romero’s argument that his appeal waiver is
invalid because he was unaware of certain alternative avenues for relief. To the
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contrary, the record shows that the Immigration Judge fully explained to Romero
that he could apply for discretionary cancellation of removal under 8 U.S.C.
§ 1229b, making this case distinguishable from United States v. Pallares–Galan,
359 F.3d 1088, 1096 (9th Cir. 2004) (“Because the [immigration judge] erred when
she told Pallares that no relief was available, Pallares’ failure to exhaust his
administrative remedies cannot bar collateral review of his deportation
proceeding.”). The Immigration Judge ultimately acted within his discretion to
deny Romero relief, 8 U.S.C. § 1229b, a decision this Court lacks jurisdiction to
review, see 8 U.S.C. § 1252(a)(2)(B)(i).
In light of our disposition, we do not consider Romero-Escobar’s remaining
contentions.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
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