Lima v. Holder

Filing

OPINION issued by Sandra L. Lynch, Chief Appellate Judge; Rogeriee Thompson, Appellate Judge and William E. Smith,* U.S. District Judge. Published. * Of the District of Rhode Island, sitting by designation. [13-1583]

Case: 13-1583

Document: 00116710655

Page: 1

Date Filed: 07/08/2014

Entry ID: 5836554

United States Court of Appeals
For the First Circuit
No. 13-1583
DIONE PEREIRA LIMA,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.

PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS

Before
Lynch, Chief Judge,
Thompson, Circuit Judge,
Smith, District Judge.*

Jeffrey B. Rubin on brief for petitioner.
Stuart F. Delery, Assistant Attorney General, Linda S.
Wernery, Assistant Director, and Theodore C. Hirt, Senior
Litigation Counsel, Office of Immigration Litigation on brief for
respondent.

July 8, 2014

*

Of the District of Rhode Island, sitting by designation.

Case: 13-1583

Document: 00116710655

Page: 2

THOMPSON, Circuit Judge.

Date Filed: 07/08/2014

Entry ID: 5836554

"As we must account for every

idle word, so must we account for every idle silence."

Benjamin

Franklin's words ring true for Petitioner Dione Pereira Lima, who
struggles mightily to take back his words in the proceedings below,
while simultaneously attempting to assert new claims of error.

In

this challenge to a final removal order requiring him to return to
Brazil,

Lima

removability.

attempts

to

undo

his

attorneys'

concessions

of

He further seeks to argue--for the first time--that

the Immigration Judge violated his due process rights by denying
his motion to continue the proceedings below and by failing to
permit him to amend his written pleadings.

We deny the petition

for review.
I. BACKGROUND
Lima is a native and citizen of Brazil who entered the
United States on or about December 16, 2004. He adjusted status to
that of lawful permanent resident on January 27, 2009.

Later that

year, Lima was arrested and charged with breaking and entering in
the daytime in violation of Mass. Gen. Laws ch. 266 § 18.1

Brought

before the Malden District Court on December 15, 2009, Lima

1

Mass. Gen. Laws ch. 266 § 18 provides, in pertinent part,
"[w]hoever, in the night time, enters a dwelling house without
breaking, or breaks and enters in the day time a building, ship, or
motor vehicle or vessel, with intent to commit a felony, no person
lawfully therein being put in fear, shall be punished by
imprisonment in the state prison for not more than ten years or by
a fine of not more than five hundred dollars and imprisonment in
jail for not more than two years."
-2-

Case: 13-1583

Document: 00116710655

Page: 3

Date Filed: 07/08/2014

admitted facts sufficient for a finding of guilt.

Entry ID: 5836554

The court

ordered the case to be continued without a finding for two years,
and directed Lima to pay restitution of approximately $6,220.00.
Lima was arrested a second time in December 2010, this
time on suspicion of breaking into cars, and charged with another
violation of Mass. Gen. Laws ch. 266 § 18.

On January 4, 2011, he

appeared again in the Malden District Court and admitted to facts
sufficient for a finding of guilt.

This time, he received two

years of probation.2
Lima's

convictions

quickly

resulted

in

consequences

beyond probation. On February 11, 2011, the Department of Homeland
Security ("DHS") served him with a Notice to Appear ("NTA")
charging him as removable under the Immigration and Nationality Act
("INA") § 237(a)(2)(A)(ii) for being convicted, at any time after
admission into the United States, of two crimes involving moral
turpitude.

A series of hearings and appeals regarding Lima's

2

8 U.S.C. § 1101(a)(48)(A) defines a conviction for
immigration purposes as "a formal judgment of guilt of the alien
entered by a court, or if adjudication of guilt has been withheld,
where-(i) a judge or jury has found the alien guilty or the alien
has entered a plea of guilty or nolo contendere or has admitted
sufficient facts to warrant a finding of guilt, and
(ii) the judge has ordered some form of punishment, penalty,
or restraint on the alien's liberty to be imposed."
Lima does not dispute that the dispositions of his criminal
cases are convictions for immigration purposes.
-3-

Case: 13-1583

Document: 00116710655

removability ensued.

Page: 4

Date Filed: 07/08/2014

Entry ID: 5836554

Because of their relevance to our decision

today, we provide the following summary of events.
After an initial hearing at which an Immigration Judge
("IJ") gave Lima additional time to secure legal representation,
counsel

appeared

on

March

3,

2011.

During

the

course

of

proceedings that day, counsel told the IJ that Lima "has [been
convicted of] two crimes of moral turpitude, which he has a
breaking and entering of a house and breaking and entering of a
vehicle."
conceding

Lima's attorney went on to submit written pleadings
the

NTA's

removable as charged.

allegations

and

admitting

that

Lima

was

Counsel explained that Lima intended to

apply for asylum and withholding of removal.

The IJ raised some

concern as to whether Lima would be eligible for asylum and asked
whether he was "trying to do anything with the convictions," to
which counsel responded in the affirmative. He further stated that
he would "have [Lima] come back in to submit the applications" for
asylum and/or withholding of removal, and adjourned the proceedings
until April 21, 2011.
Upon

his

return,

and

in

spite

of

his

past

representations, defense counsel reported now that Lima would not
be applying for asylum or withholding of removal after all. The IJ
scheduled the next hearing, at which Lima was to appear in person,

-4-

Case: 13-1583

Document: 00116710655

for May 5.

Page: 5

Date Filed: 07/08/2014

Entry ID: 5836554

Sometime thereafter, Lima discharged his original

attorney and hired new counsel.3
Lima, with his new attorney beside him, appeared before
the IJ on May 5.

Addressing Lima's change in representation,

counsel explained that Lima "did not agree with the course of
action that his previous counsel wanted to take on the case and he
seeked [sic] our office to represent him from this point forward."
She never denied or disavowed Lima's first attorney's admission
that his 2009 conviction was for breaking into a "house." She did,
however, request a continuance so that Lima could move to vacate
both convictions in the Malden District Court. Counsel stated that
Lima had not been advised of the immigration consequences of
pleading to the criminal charges and would, therefore, seek to
overturn them pursuant to the Supreme Court's ruling in Padilla v.
Kentucky.4
The IJ first noted that Lima had previously indicated he
would accept a removal order. He denied Lima's motion to continue,
observing

that

he

did

not

know

how

long

it

would

take

Massachusetts courts to dispose of Lima's Padilla motions.

3

the

The IJ

Lima's new attorney continues to represent him before this

court.
4

In Padilla v. Kentucky, the Supreme Court held that the
Sixth Amendment requires an attorney representing a noncitizen in
a criminal proceeding to advise her client about the immigration
consequences that may result from a conviction. 130 S. Ct. 1473,
1484-86 (2010).
-5-

Case: 13-1583

Document: 00116710655

Page: 6

Date Filed: 07/08/2014

Entry ID: 5836554

proceeded to find Lima removable by clear and convincing evidence
based

on

Lima's

removability."
Lima

"admissions,

as

well

as

his

concession

of

The IJ then ordered Lima removed to Brazil.
appealed

to

the

Board

of

Immigration

Appeals

("BIA"), taking the position that the IJ erred in not granting him
a continuance to collaterally attack his state court convictions.
Notably, Lima's brief to the BIA contains the explicit statement
that Lima "is removable for two convictions for which [Lima] is
actively pursuing post-conviction relief."

This was the sole

ground Lima advanced in favor of reversal.

The BIA upheld the

removal order on August 22, 2011.
That same day, the Malden District Court granted Lima's
new trial motion with respect to his 2011 conviction (the one for
breaking into cars, according to his first attorney) on the grounds
of ineffective assistance of counsel under Padilla.5
victory

in

hand,

proceedings.

Lima

filed

a

Motion

to

Reopen

With this
his

removal

The BIA granted the motion on November 15, 2011, and

remanded the matter to the IJ.
The

IJ

resumed

proceedings

on

December

8,

2011,

acknowledging as he did that one of Lima's convictions had been
vacated since he entered the order of removal.

DHS was not idle,

however, and served Lima with a new NTA at this hearing.

5

This

Whether Lima was retried and, if so, the outcome of that
trial, does not appear in the record.
Neither party's brief
satiates our curiosity in this regard.
-6-

Case: 13-1583

Document: 00116710655

Page: 7

Date Filed: 07/08/2014

Entry ID: 5836554

second NTA alleged Lima's removability under INA § 237(a)(2)(A)(i)
because he had been convicted of a single crime involving moral
turpitude, for which a sentence of one year or longer could have
been imposed, within five years of his admission to the United
States. This second NTA refers to his 2009 conviction for breaking
and entering a house.
Unlike the first go-round, this time Lima denied that he
was removable.

He requested another continuance to give him

additional time to file a motion to vacate his 2009 conviction.
DHS objected, stating that the second NTA did not set forth any new
allegations and simply charged Lima as removable based on his 2009
conviction alone. DHS stated that Lima's counsel "should have been
very well aware that was coming" and took the position that Lima
already "had ample opportunity to have both these charges vacated."
The IJ agreed with DHS and denied Lima's motion to
continue.

The IJ suggested that Lima reserve his right to appeal

and "do the same thing that [he] did the last time," i.e., seek to
have

the

pending.6

remaining

conviction

vacated

while

his

appeal

was

He proceeded to find Lima removable by clear and

convincing evidence in light of his previous concession that both

6

Despite counsel's statement that he had previously filed a
motion to vacate the 2009 conviction and was awaiting a hearing,
the record is silent as to the outcome of that hearing. We expect
defense counsel would have notified us and/or filed another motion
to reopen with the BIA had it been allowed. As it stands, however,
the only evidence in the record is that the 2009 conviction
remains.
-7-

Case: 13-1583

of

Document: 00116710655

his

criminal

Page: 8

convictions

were

Date Filed: 07/08/2014

for

crimes

Entry ID: 5836554

involving

moral

turpitude.
Lima filed a second appeal with the BIA.
this

time

that

the

government

failed

to

prove

He contended
by

clear

and

convincing evidence that his December 2009 conviction was for a
crime involving moral turpitude.

In his view, the government was

required to present evidence that the felony he intended to commit
after breaking into the house was itself a crime involving moral
turpitude.

Because the government presented no evidence as to the

nature of the contemplated follow-up crime, Lima argued that it
failed to prove his conviction was in fact for a crime involving
moral turpitude.
Notably, Lima did not claim the IJ abused his discretion
in denying the motion to continue, or that the outcome of the
immigration proceedings would have been any different had he been
given the extra time he sought.

He did not complain that his due

process rights had been violated in any respect.

Further, Lima

lodged no argument that it was improper for his former counsel to
have admitted the factual allegations contained in the original
NTA, that the 2009 conviction did not involve moral turpitude, or
that he was not removable as charged in the original NTA.

Neither

did he contradict his first attorney's statement that his 2009
conviction was predicated upon his breaking and entering a house.
The BIA found it significant that, although Lima was

-8-

Case: 13-1583

Document: 00116710655

challenging

his

Page: 9

removability

on

Date Filed: 07/08/2014

the

grounds

that

Entry ID: 5836554

his

2009

conviction was not for a crime involving moral turpitude, his prior
counsel

had

already

conceded

that

both

the

2009

and

2011

convictions were for crimes involving moral turpitude, rendering
Lima removable.

The BIA held Lima to these concessions and

affirmed the removal order.
Lima's timely petition to this Court followed.
II. DISCUSSION
A. Standard of Review
The BIA did not simply adopt the IJ's decision as its
own, but instead affirmed after providing its own analysis.
Accordingly, we focus our review on the BIA's decision rather than
the IJ's.

López v. Holder, 740 F.3d 207, 210 (1st Cir. 2014).
We review questions of law de novo, including the BIA's

conclusion that a noncitizen's criminal conviction constitutes
grounds for removal.
2013).

Patel v. Holder, 707 F.3d 77, 79 (1st Cir.

Nevertheless, we will defer to the BIA's reasonable

interpretations of the INA, "including its determination that a
particular crime qualifies as one of moral turpitude, unless that
interpretation is arbitrary, capricious, or clearly contrary to
law."

Da Silva Neto v. Holder, 680 F.3d 25, 28 (1st Cir. 2012)

(internal quotation marks omitted); see also Chevron U.S.A., Inc.,
v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984).

-9-

Case: 13-1583

Document: 00116710655

Page: 10

Date Filed: 07/08/2014

Entry ID: 5836554

Factual findings, by contrast, are reviewed deferentially
under the substantial evidence standard, "meaning that we uphold
those determinations unless 'any reasonable adjudicator would be
compelled to conclude the contrary.'" Urizar-Carrascoza v. Holder,
727 F.3d 27, 31 (1st Cir. 2013) (quoting 8 U.S.C. § 1252(b)(4)(B)).
While the ultimate question of removability is a question of law,
we apply this deferential review to the fact-based component of the
inquiry

into

concessions.

a
Id.

noncitizen's
at

32

removability

(finding

based

noncitizen's

upon

his

concession

of

removability satisfied substantial evidence standard).
B. Analysis
Lima petitions for review of the BIA's finding that he is
removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(i).

That statute

provides, in pertinent part, that any noncitizen who "(I) is
convicted of a crime involving moral turpitude committed within
five years . . . after the date of admission, and (II) is convicted
of a crime for which a sentence of one year or longer may be
imposed, is deportable."

8 U.S.C. § 1227(a)(2)(A)(i).

The BIA,

after considering the evidence, determined that Lima was removable
based on his first attorney's concession of removability.

It is

with this finding that we begin.
1. Lima's Words - Concessions of Removability
We first account for Lima's words in the proceedings
below. As noted, Lima's initial attorney conceded not only that he
-10-

Case: 13-1583

Document: 00116710655

Page: 11

Date Filed: 07/08/2014

Entry ID: 5836554

was removable for having been convicted of two crimes involving
moral turpitude, but also that his 2009 conviction was for breaking
and entering a house.

And in Lima's brief filed with the BIA in

connection with his first appeal, successor counsel conceded his
removability for having been convicted of two crimes involving
moral turpitude.

On petition to this Court, instead of telling us

why we should not hold him to the concessions of removability, Lima
spends most of his brief arguing that his 2009 conviction was not
for a crime involving moral turpitude and, therefore, he is not
removable under INA § 237(a)(2)(A)(i).
DHS takes a different view.

It asserts, first of all,

that Lima is bound by his admissions through counsel that (1) his
2009 conviction was for a crime involving moral turpitude, and (2)
that he is removable. It additionally argues that because Lima did
not challenge removability before the IJ in the initial proceedings
or before the BIA in his first appeal, it is too late for him to do
so now.

Thus, DHS asks us to uphold the BIA's conclusion that

Lima's 2009 conviction renders him removable.
To resolve this petition, we must determine whether the
BIA erred when it refused to disregard Lima's concessions.

And,

regardless of our answer to this question, we must then consider
whether

the

substantial

BIA's

finding

evidence

in

of

the

removability
record.

concessions.

-11-

We

was
begin

supported
with

by

Lima's

Case: 13-1583

Document: 00116710655

Page: 12

Date Filed: 07/08/2014

Entry ID: 5836554

(a) Binding Concessions
As

we

have

noted,

the

BIA

held

Lima

to

his

first

attorney's admission of removability based on Lima's convictions
for two crimes involving moral turpitude, and found him removable
on that basis.7

In actuality, the record reveals that Lima made

several separate admissions bearing on his removability.

His

initial attorney submitted written pleadings admitting to the
charges in the first NTA, and he stated before the IJ that the two
crimes of conviction were ones involving moral turpitude.

This

attorney also stated, on the record, that the 2009 conviction arose
out of Lima's having broken into a "house."8

And after changing

attorneys, even his new counsel admitted Lima's removability in the
initial appeal to the BIA.
Generally speaking, "[a] party's assertion of fact in a
pleading is a judicial admission by which it normally is bound
throughout the course of the proceeding."

Schott Motorcycle

Supply, Inc. v. Am. Honda Motor Co., Inc., 976 F.2d 58, 61 (1st
Cir. 1992) (internal quotation marks omitted).

And "an admission

of counsel during trial is binding on the client" if, in context,

7

The BIA also noted that in order to be removable for the
commission of a single crime involving moral turpitude, that crime
must have been committed within five years of his admission to the
United States. Lima does not contest that the offense occurred
within five years of admission.
8

Neither party has remarked upon this concession.
-12-

Case: 13-1583

Document: 00116710655

Page: 13

it is "clear and unambiguous."

Date Filed: 07/08/2014

Entry ID: 5836554

Levinsky's, Inc. v. Wal-Mart

Stores, Inc., 127 F.3d 122, 134 (1st Cir. 1997).
These rules hold true in the immigration context.
Leblanc v. I.N.S., 715 F.2d 685, 694 (1st Cir. 1983).

Where a

noncitizen fails to demonstrate that his attorney's conduct was so
egregious as to "warrant releasing [him] from his attorney's
concessions," those admissions are binding upon him.
Mukasey, 269 Fed. App'x. 5, 6-7 (1st Cir. 2008).

Karim v.

Furthermore,

where a litigant has advanced no grounds to revisit a concession of
removability, we have held that the concession is both binding on
the noncitizen and establishes sufficient grounds for finding him
Karim v. Gonzales, 424 F.3d 109, 111-12 (1st Cir.

removable.
2005).

Lima's assertion to this court that his 2009 conviction
is not for a crime involving moral turpitude cannot undo the clear
and unambiguous concessions both of his attorneys have made to the
opposite effect.
attorney's

Indeed, Lima does not claim that his first

admissions

amounted

to

the

type

of

"egregious

circumstances" that would be necessary for us to set them aside.
He

fails

to

even

address

successor

counsel's

concession

of

removability in his first brief to the BIA.
Simply put, Lima offers no substantial reason why we
should free him from his concessions of removability beyond his
assertion that he wishes to amend his pleadings. Our review of the

-13-

Case: 13-1583

Document: 00116710655

Page: 14

Date Filed: 07/08/2014

Entry ID: 5836554

record leads us to the ineluctable conclusion that his attorneys'
concessions of removability were considered tactical decisions made
because Lima did not have a meritorious defense to the charges of
removability. Indeed, the pleadings submitted during the March 17,
2011

hearing

clearly

indicate

that

Lima's

counsel

conceded

removability with the intention of then applying for relief from
removal.
We have previously stated that "[i]t is not unusual or
egregious for counsel to make tactical decisions that ultimately
fizzle and redound to the client's detriment."
at 694.

Leblanc, 715 F.2d

Nor does such a tactical decision constitute ineffective

assistance of counsel (a claim which, by the way, Lima does not
make) even when it turns out to have been less than optimal.

Id.

We conclude, therefore, that Lima has failed to demonstrate that
his attorneys' concessions of removability were so egregious as to
"warrant releasing [him] from [those] concessions."
Fed. App'x. at 6-7.

Karim, 269

Therefore, like the BIA, we too hold Lima to

the words of his attorneys.
Having reached this conclusion, we now turn to whether
the BIA properly relied exclusively on these concessions and the
admissions of removability in finding Lima removable.
(b) Concessions as Sufficient Evidence of Removability
The government bears the burden of establishing the facts
showing that a noncitizen is removable by "clear, unequivocal, and

-14-

Case: 13-1583

Document: 00116710655

convincing evidence."

Page: 15

Date Filed: 07/08/2014

Entry ID: 5836554

Urizar-Carrascoza, 727 F.3d at 32; 8 U.S.C.

§ 1229a(c)(3)(A); 8 C.F.R. § 1240.8(a).

It has been further

provided by regulation that
If
the
respondent
admits
the
factual
allegations and admits his or her removability
under the charges and the immigration judge is
satisfied that no issues of law or fact
remain, the immigration judge may determine
that
removability
as
charged
has
been
established
by
the
admissions
of
the
respondent.
8

C.F.R.

§

1240.10(c).

Thus,

although

the

government

must

establish the facts to support a finding of removability, we have
found that an IJ may apply 8 C.F.R. § 1240.10(c) to determine that
removability

has

admissions.

been

established

Urizar-Carrascoza,

based

727

on

F.3d

at

the
33;

noncitizen's
8

C.F.R.

§

1240.10(c); see also Karim, 269 Fed. App'x. at 6-7 (explaining that
an

IJ

may

rely

on

a

noncitizen's

pleadings

to

determine

removability).
Our sister circuits have reached similar conclusions. In
Selimi v. I.N.S., the Seventh Circuit held that the government was
relieved of its burden to prove removability where the noncitizen
conceded removability because the concession "was in the nature of
a judicial admission, and such an admission has the effect of
withdrawing the issue from controversy."
Cir. 2002).

312 F.3d 854, 860 (7th

Along these same lines, the Ninth Circuit has held

that an IJ may rely on a noncitizen's counsel's concessions of
removability and that "no further evidence concerning the issues of
-15-

Case: 13-1583

Document: 00116710655

Page: 16

Date Filed: 07/08/2014

fact admitted or law conceded is necessary."

Entry ID: 5836554

Perez-Mejia v.

Holder, 663 F.3d 403, 414 (9th Cir. 2011).
The Second Circuit's opinion in Hoodho v. Holder is
particularly illuminating here. 558 F.3d 184 (2d Cir. 2009). That
court rejected a petitioner's argument that, even though he had
conceded removability based on his criminal record, the IJ must
independently examine that record to determine whether he was, in
fact, removable.

Id. at 191.

In doing so, the Second Circuit held

that such admissions of removability "are not subject to judicial
scrutiny to ensure that the admissions are fully supported by the
underlying record."
by

the

IJ

of

a

Id.

The court explained that "the acceptance

plausible

concession

of

removability

unremarkable feature of removal proceedings."

is

Id. at 187.

an

Thus,

the Second Circuit held that a petitioner may not take back a
concession of removability when, "in hindsight, it might have been
preferable for him to have contested removability" instead.

Id.

We find the reasoning of our sister circuits persuasive
and apply it here. Indeed, holding noncitizens to concessions made
by counsel fits comfortably within our well-established rule in
civil litigation that "a pleading admitting a fact alleged in an
antecedent pleading is treated as a binding judicial admission,
removing

the

fact

from

contention

for

the

duration

of

the

litigation."

Harrington v. City of Nashua, 610 F.3d 24, 31 (1st

Cir. 2010).

Lima's concessions amounted to binding judicial

-16-

Case: 13-1583

Document: 00116710655

Page: 17

Date Filed: 07/08/2014

Entry ID: 5836554

admissions, upon which the IJ permissibly relied in determining
removability.
Although this would appear to bring the discussion to an
end, Lima retorts by arguing that whether or not a crime involves
moral turpitude is a question of law that he may not concede.

In

support of this proposition, he cites the Third Circuit's holding
that the "legal classification of prior convictions is not a
factual proposition susceptible of admission by a litigant."
Garcia v. Att'y Gen. of the United States, 462 F.3d 287, 290 n.6
(3d Cir. 2006).
misplaced.
be

We do not need to address this rule, which appears to

inconsistent

concession

Lima's reliance on the Third Circuit rule is

was

with
both

First
of

Circuit

fact

and

precedent,
law.

One

because
of

the

Lima's
factual

concessions was that Lima's prior conviction for breaking and
entering was of a house.

The BIA was entitled to rely on that.

In light of Lima's admission that his 2009 conviction
resulted from his breaking into a house, we find that the BIA's
conclusion that Lima's 2009 conviction rendered him removable was
not arbitrary, capricious, or clearly contrary to law.

To sum up,

the BIA did not err in holding Lima to his attorneys' concessions
of removability, nor did it abuse its discretion in determining
that Lima was removable based upon his 2009 conviction.

-17-

Case: 13-1583

Document: 00116710655

Page: 18

Date Filed: 07/08/2014

Entry ID: 5836554

2. Lima's Silence
Moving on, we must now account for Lima's previous
silence on two supposed due process violations.

First, Lima

contends that the IJ denied him due process by denying his second
attorney's request to amend the original pleadings.

He says this

is so because the IJ ignored counsel's "plausible" and "sufficient"
explanations for requesting to amend the pleadings. See Karim, 424
F.3d at 111 (stating that "[w]here no plausible reason is offered
for a request [to amend the pleadings], the word 'no' is plainly
sufficient").
Second, Lima argues that the IJ abused his discretion,
resulting in a denial of due process, by denying his request for a
continuance to give him a further opportunity to vacate his 2009
conviction. Specifically, Lima contends that he showed good cause,
and

that

his

request

applicable regulations.

should
See

have

been

granted

pursuant

to

8 C.F.R. §§ 1003.29 and 1440.6

(permitting an IJ to grant a continuance for good cause shown).
We, however, cannot decide these particular claims.
It is well-established that this Court may only review a
final order of removal if "the [noncitizen] has exhausted all
administrative remedies available to the [noncitizen] as of right."
8 U.S.C. § 1252(d)(1); Kinisu v. Holder, 721 F.3d 29, 34 (1st Cir.
2013).
the

We do make an exception for due process claims "of the kind

BIA

could

not

adjudicate

because

-18-

of

their

predominately

Case: 13-1583

Document: 00116710655

Page: 19

Date Filed: 07/08/2014

Entry ID: 5836554

constitutional character" since the BIA is "without jurisdiction to
adjudicate purely constitutional issues." Ravindran v. I.N.S., 976
F.2d 754, 762 (1st Cir. 1992).
claims

'involve

procedural

However, "[w]hen constitutional

errors

correctable

by

the

BIA,

applicants must raise such claims as part of their administrative
appeal.'"

Kandamar v. Gonzales, 464 F.3d 65, 71 (1st Cir. 2006)

(quoting Capric v. Ashcroft, 355 F.3d 1075, 1087 (7th Cir. 2004)).
Lima's

objections

to

alleged

procedural

errors,

repackaged as due process claims, fall squarely in the latter
category of due process claims.

Both of his claims center on

rulings that fell within the IJ's discretionary decision-making
authority, and which, if in error, could have been corrected by the
BIA. See, e.g., O'Connell v. Hyatt Hotels of Puerto Rico, 357 F.3d
152 (1st Cir. 2004) (denial of request to amend pleadings reviewed
for abuse of discretion); Sheikh v. Holder, 696 F.3d 147, 149 (1st
Cir.

2012)

(denial

discretion).

of

continuance

reviewed

for

abuse

of

Claims of this nature are not exempted from the

exhaustion requirement.
Our review of the record makes plain that Lima's appeal
to the BIA failed to raise any argument whatsoever regarding the
IJ's denial of his sought-after continuance or his request to amend
the pleadings.

Lima's silence precludes him from bringing those

-19-

Case: 13-1583

Document: 00116710655

claims before us now.

Page: 20

Date Filed: 07/08/2014

Kinisu, 721 F.3d at 34.9

Entry ID: 5836554

Accordingly, Lima

has failed to exhaust his administrative remedies with respect to
his due process claims, and we refuse to consider them.
III. CONCLUSION
Having accounted for both Lima's words and his silence,
we see no basis for reversal in this record.

We, therefore, deny

the petition for review.

9

Parenthetically, Lima's putative due process claims strike
us as nothing more than attacks on the IJ's discretionary decisions
"clothed in constitutional garb," presenting "no substantial
constitutional question." Bernal-Vallejo v. I.N.S., 195 F.3d 56,
63 (1st Cir. 1999).
-20-