Garcia-Carbajal v. Holder, Jr.


[9812853] Dismissed. Terminated on the merits after oral hearing. Written, signed, published. Judges Lucero, Gorsuch (authoring judge), and Arguello. Mandate to issue.

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Garcia-Carbajal v. Holder, Jr. U n i t e d States Court of Appeals Appellate Case: 09-9558 Document: 01018527808 Date Filed: 11/05/2010Circuit 1 T e n t h Page: FILED Doc. 0 N o v e m b e r 5, 2010 PUBLISH U N I T E D STATES COURT OF APPEALS T E N T H CIRCUIT E l i s a b e t h A. Shumaker C l e r k of Court A L O N S O GARCIA-CARBAJAL, Petitioner, v. E R I C H. HOLDER, JR., United States A t t o r n e y General, Respondent. N o . 09-9558 O N PETITION FROM FINAL ORDER OF REMOVAL ISSUED BY THE BOARD OF IMMIGRATION APPEALS A a r o n C. Hall (Emily A. White, with him on the briefs), Aurora, Colorado, for Petitioner. A n n M. Welhaf (Anh-Thu P. Mai-Windle, Senior Litigation Counsel, with her on t h e brief), Office of Immigration Litigation, United States Department of Justice, W a s h i n g t o n , D.C., for Respondent. B e f o r e LUCERO and GORSUCH, Circuit Judges, and ARGUELLO *, District Judge. G O R S U C H , Circuit Judge. Honorable Christine M. Arguello, District Court Judge, District of C o l o r a d o , sitting by designation. * Appellate Case: 09-9558 Document: 01018527808 Date Filed: 11/05/2010 Page: 2 A l o n s o Garcia-Carbajal seeks to challenge a Board of Immigration Appeals ( " B I A " ) order on grounds he never argued to the Board. Ordinarily, this a petitioner cannot do. Ordinarily, a petitioner must exhaust all a d mi n i s t r a t i v e processes available to hear his arguments before he may seek to b r i n g those arguments to court. But Mr. Garcia-Carbajal submits his case isn't an o r d i n a r y one. Under Sidabutar v. Gonzales, 503 F.3d 1116 (10th Cir. 2007), he s a y s , when the BIA sua sponte considers arguments not advanced by the p e t i t i o n e r , the Board effectively exhausts the available administrative remedies f o r the petitioner, so that the petitioner may later pursue those arguments in court. Sidabutar's "sua sponte exhaustion" rule, however, is a narrow one. To qualify f o r it, the BIA must: (1) clearly identify a claim, issue, or argument not presented b y the petitioner; (2) exercise its discretion to entertain that matter; and (3) e x p l i c i t l y decide that matter in a full explanatory opinion or substantive d i s c u s s i o n . Only then may a petitioner take an argument to court that he never p u r s u e d before the BIA. Because none of these three circumstances exists here, w e cannot say Mr. Garcia-Carbajal exhausted his administrative remedies and so d i s mi s s his petition for review. I T h i s case began when the Department of Homeland Security sought to r e mo v e Mr. Garcia-Carbajal from the country. In response, Mr. Garcia-Carbajal c o n c e d e d that he entered the country without inspection and was lawfully subject -2- Appellate Case: 09-9558 Document: 01018527808 Date Filed: 11/05/2010 Page: 3 t o removal. At the same time, though, he sought discretionary relief under 8 U . S . C . 1229b(b). That provision allows the Attorney General to "cancel" a r e mo v a l that would result in "unusual hardship" to an alien's U.S. citizen family me mb e r s . In support of his cancellation request, Mr. Garcia-Carbajal testified to economic and personal harms that would befall his family should he be forced to l e a v e the country. B u t an immigration judge ("IJ") hearing Mr. Garcia-Carbajal's case under t h e Attorney General's delegated authority saw a problem. Section 1229b(b) p r o h i b i t s the Attorney General from cancelling the removal of an alien who has b e e n convicted of a "crime involving moral turpitude." See 8 U.S.C. 1229b(b)(1)(C); 8 U.S.C. 1182(a)(2). And this posed an obstacle for Mr. G a r c i a - C a r b a j a l , the IJ held, given his prior conviction for assault under Colo. R e v . Stat. 18-3-204. Noting that Mr. Garcia-Carbajal's conviction involved " k n o w i n g l y causing bodily injury," the IJ found that this qualified as a "crime i n v o l v i n g moral turpitude" and so ruled Mr. Garcia-Carbajal ineligible for c a n c e l l a t i o n . R.O.A. at 51. M r . Garcia-Carbajal filed a terse appeal in the BIA. His argument there f o c u s e d not on the substantive question whether his prior state conviction was or w a s n ' t a crime involving moral turpitude, but on the process the IJ used to a n a l y z e that question. Other than another theory he's since abandoned, the sum t o t a l of Mr. Garcia-Carbajal's appeal was this: -3- Appellate Case: 09-9558 Document: 01018527808 Date Filed: 11/05/2010 Page: 4 T h e trial court failed to engage in the analysis described in the BIA d e c i s i o n in Silva-Trevino, [24 I. & N. Dec. 687 (A.G. 2008)], and therefore, i t s analysis is flawed. That decision was issued after the [immigration j u d g e ' s ] decision herein, and therefore, the court could not be expected to h a v e been aware of it before it existed, but nonetheless, that decision is b i n d i n g precedent, and the court is required to follow it. R . O . A . at 17. In Matter of Silva-Trevino, the Attorney General held that an i mmi g r a t i o n judge should first look at the statute of conviction to determine w h e t h e r there is a "realistic probability" that the statute will sometimes reach c o n d u c t involving moral turpitude. 24 I. & N. Dec. at 698. If the statute always o r never applies to such conduct, the inquiry ends. But if that inquiry doesn't r e s o l v e the question, the immigration judge should then look to the record of c o n v i c t i o n to determine whether the petitioner's specific conviction involved mo r a l turpitude. Id. at 698-99. T h e BIA rejected Mr. Garcia-Carbajal's appeal. Acknowledging that SilvaT r e v i n o hadn't yet been decided at the time of the IJ's decision in Mr. GarciaC a r b a j a l ' s case, the BIA held that the IJ nonetheless had anticipated and " e s s e n t i a l l y . . . followed" the path Silvia-Trevino later suggested. R.O.A. at 3-4. The immigration judge had determined that the Colorado statute "reached both c r i me s that involve moral turpitude and those that do not. He then . . . examined t h e conviction records which indicate . . . that [Mr. Garcia-Carbajal's] conviction i n v o l v e d knowingly causing bodily injury to another individual. As such the I mmi g r a t i o n Judge correctly determined that the crime involved moral turpitude. -4- Appellate Case: 09-9558 Document: 01018527808 Date Filed: 11/05/2010 Page: 5 S e e Matter of Solon, 24 I. & N. Dec. 239 (BIA 2007), citing Matter of Fualaau, 2 1 I. & N. Dec. 475 (BIA 1996)." R.O.A. at 4. In this way, the BIA concluded, t h e immigration judge had proceeded consistently with Silva-Trevino and reached t h e correct result. Id. II I n his petition for review before us, Mr. Garcia-Carbajal no longer disputes t h a t his case was analyzed under the process suggested by Silva-Trevino. Instead, h e seeks to pursue two substantive arguments why his crime doesn't qualify as o n e "involving moral turpitude." First, he says, as a categorical matter the statute u n d e r which he was convicted never implicates crimes of moral turpitude. Second, and even if it does, he says his conviction shouldn't be considered a c r i me involving moral turpitude because it didn't require the state to prove that he a c t e d with a specific intent or inflicted serious bodily injury. See Petr. Br. at 12 ( S t a t e me n t of the Issues Presented). We lack authority to entertain these a r g u me n t s , however, because Mr. Garcia-Carbajal never pursued them before the B I A and so failed to exhaust them administratively. Neither are we persuaded by M r . Garcia-Carbajal's suggestion that Sidabutar excuses his failure to exhaust. A I t is a fundamental principle of administrative law that an agency must have t h e opportunity to rule on a challenger's arguments before the challenger may b r i n g those arguments to court. "A reviewing court usurps the agency's function -5- Appellate Case: 09-9558 Document: 01018527808 Date Filed: 11/05/2010 Page: 6 w h e n it sets aside the administrative determination upon a ground not theretofore p r e s e n t e d and deprives the [agency] of an opportunity to consider the matter, ma k e its ruling, and state the reasons for its action." Unemp. Comp. Comm'n of A l a s k a v. Aragon, 329 U.S. 143, 155 (1946). The purposes behind this rule are ma n y and important: to avoid premature interference with agency processes, to g i v e the agency the opportunity to correct its own errors, and to afford the parties t h e benefits of whatever expertise the agency may possess. See Weinberger v. S a l f i , 422 U.S. 749, 765 (1975); Sidabutar, 503 F.3d at 1121. For all these r e a s o n s , we often refuse to consider arguments -- sometimes very good a r g u me n t s -- that were not presented to the agency before being presented to us. See Micheli v. Dir., OWCP, 846 F.2d 632, 635 (10th Cir. 1988). This general principle of administrative law bears special force in the i mmi g r a t i o n context, where Congress has reduced it to a statutory command. See 8 U.S.C. 1252(d) (an alien seeking, as here, to challenge a removal order may d o so "only if [] the alien has exhausted all administrative remedies available to" h i m) . It is not enough to go through the procedural motions of a BIA appeal, or t o make "general statements in the notice of appeal to the BIA," or to level "broad a s s e r t i o n s " in a filing before the Board. See Torres de la Cruz v. Maurer, 483 F . 3 d 1013, 1018 (10th Cir. 2007). To satisfy 1252(d)(1), an alien must present t h e same specific legal theory to the BIA before he or she may advance it in court. -6- Appellate Case: 09-9558 Document: 01018527808 Date Filed: 11/05/2010 Page: 7 O u r decision in Torres de la Cruz illustrates the point. There, a legally a d mi t t e d alien faced removal because he stood convicted of a "controlled s u b s t a n c e " offense. See 8 U.S.C. 1227(a)(2)(B)(i). He appealed to the BIA, a r g u i n g that his conviction wasn't a controlled substance offense because it was o n l y a misdemeanor. Before this court he urged the same conclusion, but changed h i s argument. Now, he said, his conviction was not a controlled substance o f f e n s e because it involved drug possession, not drug trafficking as required u n d e r his interpretation of the statute. We held this latter theory had not been e x h a u s t e d administratively and refused to consider it on the merits. See Torres de l a Cruz, 483 F.3d at 1018. It was not enough for the petitioner to challenge the c l a s s i f i c a t i o n of his conviction before the BIA; we held that he had to present to t h e BIA the specific legal theory why the government's classification was incorrect. U n d e r this standard, Mr. Garcia-Carbajal has not exhausted the arguments h e seeks to pursue in this court. The only question he presented for decision to t h e BIA was whether the immigration judge "failed to engage in the [two step] a n a l y s i s described in the BIA decision in Silva-Trevino." R.O.A. at 17. Before u s , he has abandoned this particular legal theory entirely. Instead of challenging t h e process by which his case was analyzed, he now seeks to challenge the s u b s t a n c e of the results it reached -- arguing first, as a categorical matter, that t h e Colorado statute under which he was convicted never implicates crimes of -7- Appellate Case: 09-9558 Document: 01018527808 Date Filed: 11/05/2010 Page: 8 mo r a l turpitude; and, second, that, even if the statute does sometimes implicate c r i me s of moral turpitude, his particular conviction wasn't such a crime. Neither o f these specific legal theories was ever presented to the BIA. Of course, Mr. G a r c i a - C a r b a j a l did ask the BIA to reverse the immigration judge's decision. But p r e s e n t i n g a conclusion or request for relief to the BIA isn't enough to exhaust e v e r y potential argument for reaching that conclusion or winning that relief. Under 1252(d)(1) and Torres de la Cruz, Mr. Garcia-Carbajal had a duty to p r e s e n t to the BIA all of his specific legal theories for reversal. This he did not d o , and he may not add new theories seriatim as the litigation progresses from the a g e n c y into the courts. B E v e n if all this ordinarily holds true, Mr. Garcia-Carbajal submits his is no o r d i n a r y case. We may, he says, review his new arguments on appeal because of a rule we announced in Sidabutar. There, this court recognized that "generally [ w e will] assert jurisdiction only over those arguments that [an alien] properly p r e s e n t s to the BIA." Sidabutar, 503 F.3d at 1118. But we then proceeded to r e c o g n i z e a very narrow caveat. And it is this caveat Mr. Garcia-Carbajal seeks t o exploit. We don't think he can. T o understand why, some background about Sidabutar is necessary. There, t h e alien appealed to the BIA only his political asylum claim. In its decision, the B o a r d proceeded to dispose not only of that claim for relief; it also expressly -8- Appellate Case: 09-9558 Document: 01018527808 Date Filed: 11/05/2010 Page: 9 r e a c h e d out and considered the alien's (never appealed) claims involving r e s t r i c t i o n on removal and the convention against torture, issuing a final s u b s t a n t i v e decision on those two independent claims for relief as well. Id. While Article III courts don't usually reach out to decide unappealed claims for r e l i e f , agencies aren't always subject to the same strictures. And precisely b e c a u s e of the deference we owe agencies when they are interpreting their own a d mi n i s t r a t i v e procedures, we said that "if the BIA deems an issue sufficiently p r e s e n t e d to consider it on the merits, such action by the BIA exhausts the issue a s far as the agency is concerned . . . and that is all 1252(d)(1) requires." Sidabutar, 503 F.3d at 1120. The question of exhaustion is ultimately a p r o c e d u r a l one, we acknowledged, and administrative agencies "should be free to f a s h i o n their own rules of procedure" for deciding when a matter is or isn't e x h a u s t e d . Id., citing FCC v. Pottsville Broad. Co., 309 U.S. 134, 143 (1940). If t h e BIA decides an argument is worth sua sponte taking up and issuing a final a g e n c y decision on, thereby exhausting all available agency processes to hear and r e s o l v e that argument, we will not stand in its way. A t the same time, we acknowledged that this form of exhaustion will be the r a r e exception, not the rule. It isn't every day, after all, that an agency takes up t w o independent claims for relief not appealed to it and proceeds to issue a final d e c i s i o n on their merits. So in Sidabutar we stressed that it is only when it is c l e a r that the BIA has issued "a full explanatory opinion or a discernible -9- Appellate Case: 09-9558 Document: 01018527808 Date Filed: 11/05/2010 Page: 10 s u b s t a n t i v e discussion" on the merits of "matters not presented by the alien" that w e will consider it to have chosen to exhaust that claim administratively. 503 F . 3 d at 1122. After all, we must still and always ensure 1252(d)(1)'s e x h a u s t i o n requirement has been met -- that an argument has been aired and f i n a l l y resolved by the agency; that we aren't prematurely interfering with a ma t t e r the BIA has yet to consider fully and address squarely. To satisfy the exhaustion requirement in the narrow fashion Sidabutar s u g g e s t s , then, we hold three preconditions must be met to qualify for exhaustion u n d e r its terms. As in Sidabutar itself, the BIA's ruling must: (1) clearly identify a claim, issue, or argument not presented by the petitioner; (2) demonstrate that t h e agency chose to exercise its discretion to entertain that matter; and (3) e x p l i c i t l y decide that matter in a full explanatory opinion or substantive discussion. Each of these requirements is essential. If it's not clear that the agency i d e n t i f i e d a potential argument, we can hardly be sure that the agency was aware o f it, let alone ruled on it. Whenever an agency states a conclusion (as here, for e x a mp l e , "the Immigration Judge correctly determined that the crime involved mo r a l turpitude") it impliedly rejects any number of unmade potential arguments. But that doesn't mean the agency noticed those arguments, let alone considered a n d ruled on them. Likewise, even if the agency identifies a potential argument ( u n ma d e by the petitioner), we can't be certain the agency applied its expertise to - 10 - Appellate Case: 09-9558 Document: 01018527808 Date Filed: 11/05/2010 Page: 11 t h e question unless and until the agency makes clear its wish to entertain the a r g u me n t and proceeds to rule on it in a full explanatory opinion or substantive d i s c u s s i o n . Only when all of these conditions are met can we be sure that 1252(d)(1)'s exhaustion requirement has been satisfied, with the agency having h a d a fair chance to apply its expertise to the matter and having reached a final decision. T h e whole point of Sidabutar was to respect an agency's clearly expressed w i s h to exhaust a question not presented to it by reaching a final decision -- to d e f e r to an agency's chosen administrative exhaustion procedures. If stray or c r y p t i c comments by an agency in the course of its decision were enough to i n v o k e our jurisdiction over arguments never raised before the agency, litigants w o u l d have less incentive to bring all their arguments first and clearly to the a g e n c y for decision. Worse, the agency itself would be inhibited from providing t h o r o u g h and explanatory opinions, as any passing remark could serve as the basis f o r the alien's next round of appeal. In this way, the opportunity for a reasoned a n d expert agency decision in the first instance would be much diminished. To e n s u r e that we are enforcing the exhaustion requirement in a way respectful to a g e n c y processes -- rather than snaring the agency -- we may only proceed to c o n s i d e r an issue under Sidabutar when it is clear that the Board actually c o n s i d e r e d the question and applied its expertise to answer it. - 11 - Appellate Case: 09-9558 Document: 01018527808 Date Filed: 11/05/2010 Page: 12 N o n e of the requisite clarity exists in this case. The closest thing we have t o evidence that the BIA identified and addressed Mr. Garcia-Carbajal's newly mi n t e d substantive arguments is this language at the end of its opinion: As such, the Immigration Judge correctly determined that the crime i n v o l v e d moral turpitude. See Matter of Solon, 24 I. & N. Dec. 239 (BIA 2 0 0 7 ) , citing Matter of Fualaau, 21 I. & N. Dec. 475 (BIA 1996). B I A Op. at 2. Because Solon and Fualaau spoke to when a crime is and isn't one " i n v o l v i n g moral turpitude," we suppose it's possible the BIA anticipated the s u b s t a n t i v e question whether Mr. Garcia-Carbajal's crime qualified and decided t h a t it did. But it's also possible the Board didn't. In the first place, the only issue the BIA clearly identified in this case was t h e question actually presented to it -- whether the IJ successfully anticipated and f o l l o w e d Silvia-Trevino's analytical process. The agency did not, for example, t a k e a detour to note that "although we have previously held that purposeful a s s a u l t is a crime involving moral turpitude, knowing assault is a lesser mens rea a r g u a b l y calling for a different result." That would've signaled that the agency r e c o g n i z e d that an alien might try (as Mr. Garcia-Carbajal tries in one of his a r g u me n t s before us) to distinguish between purposeful and knowing assaults -- a n d would've opened the possibility that the agency was about to provide a c o n s i d e r e d answer to the question. But no such language exists in the BIA's opinion. - 12 - Appellate Case: 09-9558 Document: 01018527808 Date Filed: 11/05/2010 Page: 13 L i k e w i s e , nothing in the BIA's opinion demonstrates that the agency e x e r c i s e d its discretion to take up that or any other of the arguments Mr. GarciaC a r b a j a l now seeks to press in court. The Board merely walked through the steps n e c e s s a r y to answer Mr. Garcia-Carbajal's objection that the immigration judge i mp r o p e r l y applied Silvia-Trevino's two-step analysis. Stray statements made in t h e course of answering the arguments the alien actually presented do not, without mo r e , indicate that the agency sought to exercise its discretion to do anything b e y o n d what was asked of it. Finally, nothing in the BIA's opinion could be called a full explanatory o p i n i o n or substantive discussion deciding Mr. Garcia-Carbajal's current a r g u me n t s . While we of course defer to the agency's determination of the depth o f explanation merited by a given question, one cryptic sentence followed by two c i t a t i o n s to prior authority cannot be fairly characterized explanatory or substantive. Simply put, Mr. Garcia-Carbajal meets none of the three essential elements t o exhaustion under Sidabutar. Allowing him to avoid a statutory exhaustion r e q u i r e me n t based on language of, at most, ambiguous purpose would do nothing t o respect agency authority and much to undermine it, encouraging future efforts b y litigants to squeeze elephants of arguments into court through administrative mo u s e h o l e s . This is not the sort of respect for administrative decisionmaking on - 13 - Appellate Case: 09-9558 Document: 01018527808 Date Filed: 11/05/2010 Page: 14 w h i c h 1252(d), Torres de la Cruz, and Sidabutar are grounded and which they s e e k to encourage. ** Because Mr. Garcia-Carbajal has not exhausted his administrative remedies o n the arguments he now seeks to pursue in this court, the petition for review is Dismissed. Mr. Garcia-Carbajal further argues that we can and should waive the e x h a u s t i o n requirement when exhaustion would've been futile. In his view, r e q u i r i n g him to make his current arguments to the BIA would be a fruitless e x e r c i s e , given that we owe the BIA no deference when it is interpreting state c r i mi n a l statutes, like Colorado's assault statute. But even assuming without d e c i d i n g that we have the legal authority to waive the statutory exhaustion r e q u i r e me n t embodied in 1252(d)(1) on a showing of futility, Mr. GarciaC a r a b a j a l ' s argument fails on its own terms. The issues he now seeks to pursue -- whether the Colorado statute under which he was convicted can ever involve a c r i me of moral turpitude; whether, if it can, his particular conviction involved a c r i me of moral turpitude -- certainly require examination of state law. But they a l s o turn on a question of federal immigration law -- namely, what does and d o e s n ' t qualify as a "crime involving moral turpitude," as that term is used in f e d e r a l law. See 8 U.S.C. 1229b(b)(1)(C) & 1182(a)(2). And it is at least p o s s i b l e we owe the BIA's construction of that federal statutory term a degree of d e f e r e n c e . See Solis-Muela v. I.N.S., 13 F.3d 372, 375 (10th Cir. 1993). Because o f this it may well be the case that the BIA had some expertise it could have b r o u g h t to bear on Mr. Garcia-Carbajal's arguments. And because of this we c a n n o t say that affording the BIA the opportunity to review Mr. Garcia-Carbajal's a r g u me n t s in the first instance would've been a futile gesture. - 14 - **

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