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Pinos-Gonzalez v. Keisler: IMMIGRATION - no jurisdiction regarding discrimination denial of cancellation of removal; no error in waiver rule

United States Court of Appeals
No. 07-1299
Jorge Pinos-Gonzalez, *
Petitioner, *
* Petition for Review of an
v. * Order of the Board of
* Immigration Appeals.
Michael B. Mukasey, *
Attorney General of the *
United States of America, *
Respondent. *
Submitted: November 15, 2007
Filed: March 5, 2008
Before MURPHY, HANSEN, and GRUENDER, Circuit Judges.
HANSEN, Circuit Judge.
Jorge Pinos-Gonzalez ("Pinos") petitions for review of an order of the Board
of Immigration Appeals (BIA), which dismissed his appeal from the decision of an
Immigration Judge (IJ) finding him ineligible for cancellation of removal. The BIA
concluded that Pinos was attempting to appeal an issue that he had conceded with an
argument he had not raised before the IJ. Pinos asserts that the BIA erred by not
considering his legal argument regarding his eligibility for cancellation of removal,
1Michael B. Mukasey, now Attorney General of the United States, is substituted
as respondent pursuant to Federal Rule of Appellate Procedure 43(c).
and the Attorney General1 responds that this court should give effect to the BIA's
waiver rule. We deny the petition for review.
Pinos admitted the allegations of an amended Notice to Appear in removal
proceedings and conceded the charge of removability. He subsequently applied for
cancellation of removal. See 8 U.S.C. § 1229b(b). At a preliminary hearing on June
9, 2005, the IJ noted that his criminal record included a 2004 Minnesota conviction
of domestic assault in the fifth degree in violation of Minn. Stat. § 609.224, and a
2002 Minnesota conviction for providing false information to a police officer in
violation of Minn. Stat. § 609.506. The IJ noted that she considered these to be crimes
involving moral turpitude and continued the hearing to provide an opportunity for the
parties to address the issue of whether these convictions rendered Pinos ineligible for
cancellation of removal. See § 1229b(b)(1)(C) (providing that cancellation of removal
is available to an otherwise inadmissible alien if, among other things, the alien has not
been convicted of an offense under § 1182(a)(2)); id. § 1182(a)(2)(A)(i) (stating an
alien who has "committed, or who admits committing acts which constitute the
essential elements of – (I) a crime involving moral turpitude . . . is inadmissible").
At the continued hearing on September 22, 2005, the IJ concluded that Pinos
was ineligible for cancellation of removal because he had been convicted of two
crimes involving moral turpitude, referencing the domestic assault conviction and the
conviction for providing false information to an officer. Pinos asserted that his
domestic assault conviction might be vacated in his postconviction proceeding that
was then pending in the state appellate court, and if so, he would be eligible for
cancellation of removal under the petty-offenses exception. See id.
§ 1182(a)(2)(A)(ii)(II) (providing that an alien is not barred from seeking cancellation
of removal on the basis of only one crime involving moral turpitude if the maximum
penalty possible for the crime does not exceed imprisonment for one year and the
alien was not sentenced to more than six months of imprisonment). His attorney
expressly acknowledged that if the state court did not vacate the domestic assault
conviction, Pinos's convictions would render him ineligible for cancellation of
removal. (See R. at 79-80.) The IJ agreed to continue the hearing.
When the hearing reconvened on January 6, 2006, the state postconviction
proceeding was still pending, and the IJ denied Pinos's request for another
continuance. Pinos acknowledged his convictions for domestic assault and providing
false information to a police officer, and he did not again argue that he was eligible
for cancellation of removal. The IJ concluded that these convictions rendered him
ineligible for cancellation of removal and denied his request for a voluntary departure.
Pinos appealed to the BIA, arguing for the first time that his conviction for
providing false information to an officer was not a "crime" of moral turpitude because
the record indicated that the charge to which he pleaded guilty had been amended to
a petty misdemeanor, which is not considered a "crime" under Minnesota law. See
Minn. Stat. § 609.02, subd. 4a. Pinos argued that his one remaining crime of moral
turpitude, the conviction for domestic assault, fit within the petty-offense exception,
making him eligible for cancellation of removal as a matter of law, contrary to the IJ's
determination. But, the BIA dismissed the appeal and refused to consider this
argument because Pinos had waived it by not presenting it to the IJ. The BIA noted
that Pinos had "acknowledged several times that his convictions would preclude him
from cancellation of removal," (Petitioner's Add. at 2), and emphasized that the
petitioner has the burden to demonstrate his eligibility for relief from removal and to
develop the relevant issues at the hearing before the IJ.
Pinos then filed this petition for judicial review, arguing that the BIA erred in
dismissing his appeal without considering the merits of his legal claim that he is
eligible for cancellation of removal under the petty-offense exception. This court does
not have jurisdiction to review the discretionary denial of cancellation of removal
under § 1229b, see 8 U.S.C. § 1252(a)(2)(B)(i), but we have jurisdiction to review
constitutional claims or questions of law raised in a petition for judicial review, see
id. § 1252(a)(2)(D). We may also review the nondiscretionary determinations
underlying a denial of an application for cancellation of removal, "such as the
predicate legal question whether the IJ properly applied the law to the facts in
determining an individual's eligibility." Guled v. Mukasey, Nos. 07-1681 & 07-2339,
2008 WL 248745, at *5 (8th Cir. Jan. 31, 2008); see Reyes-Vasquez v. Ashcroft, 395
F.3d 903, 906 (8th Cir. 2005). Here, the IJ considered Pinos's request for cancellation
of removal and found him to be ineligible on the basis of two convictions involving
moral turpitude. Pinos acknowledged the convictions before the IJ but raised a new
argument attacking one of those convictions in his appeal to the BIA. Citing its own
precedents, the BIA refused to consider this new argument, finding that Pinos had
waived it by not raising the argument before the IJ. While we have jurisdiction to
consider legal arguments regarding an individual's underlying eligibility for
discretionary review, this case presents a situation where the agency itself has never
ruled upon the merits of the argument that is presented to us, citing its own procedural
waiver rule.
The federal regulations provide the BIA with discretionary authority to review
the legal conclusions of immigration judges de novo, 8 C.F.R. § 1003.1(d)(3)(ii), and
authority to prescribe procedural rules governing the proceedings before it, id.
§ 1003.1(d)(4). The BIA has held that issues not raised before the IJ are not preserved
for appeal. See, e.g., In re R-S-H, 23 I & N Dec. 629, 638 (2003) (holding an alien
"waived his opportunity to pursue this issue on appeal" by not raising the issue at the
hearing before the IJ); see also Torres de la Cruz v. Maurer, 483 F.3d 1013, 1022-23
(10th Cir. 2007) (citing several BIA cases holding the same). The Tenth Circuit in
Torres de la Cruz considered the BIA's procedural bar and found it to be "wholly
consistent with [the BIA's] rules of practice," including its charge to function as an
appellate body. 483 F.3d at 1023 (citing 8 C.F.R. § 1003.1(d)). The Tenth Circuit
reasoned that the policies underlying a general appellate waiver rule "apply with equal
force to the BIA," and that the BIA can therefore appropriately apply the doctrine of
waiver under its own rules and precedents. Id. The Tenth Circuit gave effect to the
BIA's waiver rule by declining to reach the issue for the same reasons as the BIA. We
find that reasoning to be sound. Where the agency properly applies its own waiver
rule and refuses to consider the merits of an argument that was not raised in the initial
hearing, we will not permit an end run around those discretionary agency procedures
by addressing the argument for the first time in a petition for judicial review. Cf.
Etchu-Njang v. Gonzales, 403 F.3d 577, 583 (8th Cir. 2005) (explaining that the
similar doctrine of issue exhaustion in general "serves the salutary purpose of giving
the agency an opportunity to address the disputed issue in the first instance").
Pinos asserts that the federal regulations require the BIA to consider legal
arguments de novo, but the language of the governing regulation is permissive and
discretionary, not mandatory. See 8 C.F.R. § 1003.1(d)(3)(ii) (providing that the BIA
"may review questions of law, discretion, and judgment and all other issues in appeals
from decisions of immigration judges de novo" (emphasis added)). Additionally, as
noted above, the federal regulations grant the BIA the authority to prescribe its own
procedural rules to govern the proceedings before it. Id. § 1003.1(d)(4). The BIA
cited its own precedent for the waiver rule and explained that Pinos had an
opportunity to raise this argument before the IJ, where it was his burden to
demonstrate his eligibility for cancellation of removal, but he did not. The BIA
emphasized that Pinos acknowledged several times before the IJ that his convictions
would preclude him from cancellation of removal unless he obtained postconviction
relief on the domestic assault conviction. Cf. 8 C.F.R. § 1003.1(d)(2)(i)(B) (providing
that the BIA has authority to summarily dismiss an appeal in any case in which "[t]he
only reason for the appeal specified by the party concerned involves . . . a conclusion
of law that was conceded by that party at a prior proceeding"). To the extent that
determining whether the BIA properly followed its own rules is a legal question, we
conclude that the BIA committed no error in applying its own waiver rule to Pinos on
this record. Finding no legal error in this process, we likewise decline to reach the
merits of Pinos's argument. See Torres de la Cruz, 483 F.3d at 1023.
Pinos asserts that the BIA's application of the waiver rule violated his right to
due process and that the IJ denied him due process by erroneously concluding that he
was not eligible for cancellation of removal relief. We first note that the IJ's decision
is not before us; only the BIA's decision is subject to our review, and that decision
dismissed Pinos's administrative appeal on the basis of a procedural bar without
affirming or adopting the findings or reasoning articulated by the IJ. See Fofanah v.
Gonzales, 447 F.3d 1037, 1040 (8th Cir. 2006) ("Only the BIA order is subject to our
review, including the IJ's findings and reasoning to the extent they were expressly
adopted by the BIA."). Thus, the IJ's conclusion that Pinos was not eligible for
cancellation of removal is not before us.
Additionally, we reject Pinos's argument that the BIA violated his due process
rights by refusing to consider de novo his legal argument regarding his eligibility for
cancellation of removal. The Fifth Amendment guarantees due process in removal
proceedings, including a right to fundamentally fair removal proceedings. Habchy v.
Gonzales, 471 F.3d 858, 866 (8th Cir. 2006). An alien states a due process claim,
however, only where he has been deprived of a protected liberty or property interest.
Garcia-Mateo v. Keisler, 503 F.3d 698, 700 (8th Cir. 2007); Etchu-Njang, 403 F.3d
at 585. We have repeatedly held that there is no constitutionally protected liberty or
property interest in discretionary relief. See, e.g., Garcia-Mateo, 503 F.3d at 700;
Etchu-Njang, 403 F.3d at 585; Nativi-Gomez v. Ashcroft, 344 F.3d 805, 809 (8th Cir.
2003). Likewise, "an alien has no constitutionally-protected right . . . to be eligible
for discretionary relief." Oguejiofor v. Attorney General, 277 F.3d 1305, 1309 (11th
Cir. 2002) (quoted and cited favorably in Garcia-Mateo, 503 F.3d at 700). Because
Pinos has no constitutionally protected liberty or property interest in the discretionary
relief of cancellation of removal, he cannot establish a due process right in the
proceedings to obtain that relief. See Garcia-Mateo, 503 F.3d at 700; Etchu-Njang,
403 F.3d at 585.
For these reasons, we deny Pinos's petition for review.


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