Aurelio Martinez-Tovar v. U.S. Attorney General

Filing

Opinion issued by court as to Petitioner Aurelio Martinez-Tovar. Decision: Affirmed. Petition Denied in part, Dismissed in part. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.--[Edited 02/14/2017 by JRP]

Case: 16-10224

Date Filed: 02/14/2017

Page: 1 of 7

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-10224
Non-Argument Calendar
________________________
Agency No. A205-133-055
AURELIO MARTINEZ-TOVAR,
a.k.a. Aurelio Martinez,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(February 14, 2017)
Before JORDAN, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:
Aurelio Martinez-Tovar seeks review of the Board of Immigration Appeals’
(“BIA”) final order affirming the Immigration Judge’s (“IJ”) denial of his request

Case: 16-10224

Date Filed: 02/14/2017

Page: 2 of 7

for a third continuance of his removal proceedings. On appeal, Martinez-Tovar
argues that good cause existed to grant his continuance motion. Next, MartinezTovar wishes to raise, for the first time on appeal, an ineffective assistance of
counsel claim against his former attorney, who represented him before the IJ and
the BIA.
I.
When the BIA issues a decision, we review only that decision, except to the
extent that the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257
F.3d 1262, 1284 (11th Cir. 2001). If the BIA explicitly agreed with the IJ’s
particular findings, we review both the IJ’s and BIA’s conclusions regarding those
issues. Ayala v. U.S. Att’y Gen., 605 F.3d 941, 948 (11th Cir. 2010).
We review the denial of a motion for a continuance for an abuse of
discretion. Chacku v. U.S. Att’y Gen., 555 F.3d 1281, 1285 (11th Cir. 2008).
Judicial review is limited to determining “whether there has been an exercise of
administrative discretion and whether the matter of exercise has been arbitrary or
capricious.” Garcia-Mir v. Smith, 766 F.2d 1478, 1490 (11th Cir. 1985) (quotation
omitted).
The grant of a continuance is within the IJ’s broad discretion, and the
immigration regulations provide that an IJ may grant one if good cause is shown.
8 C.F.R. § 1003.29; Zafar v. U.S. Att’y Gen., 461 F.3d 1357, 1362 (11th Cir.
2

Case: 16-10224

Date Filed: 02/14/2017

Page: 3 of 7

2006). It is not an abuse of discretion to deny a continuance if the movant has not
shown that he is eligible for the relief he wants more time to obtain. See Zafar,
461 F.3d at 1363-64.
A provisional unlawful presence waiver of inadmissibility (I-601A) is
available to “certain aliens who are pursuing consular immigrant visa processing”
as an immediate relative of a United States citizen. 8 C.F.R. § 212.7(e). To be
eligible for a waiver, the alien, upon departure from the United States, must be
inadmissible solely under Immigration and Nationality Act (“INA”)
§ 212(a)(9)(B)(i), 8 U.S.C. § 1182 (a)(9)(B)(i), at the time of the visa interview.
8 C.F.R. § 212.7(e)(3)(iii).
Pursuant to INA § 212(a)(9)(B)(i), an alien is inadmissible if: (1) he has
been unlawfully present for a period of more than 180 days but less than 1 year,
voluntarily departed the United States prior to formal removal proceedings, and
seeks admission within 3 years of the date of his departure; or (2) he has been
unlawfully present for 1 year or more and again seeks admission within 10 years of
the date of his departure or removal from the United States. INA
§ 212(a)(9)(B)(i)(I)-(II), 8 U.S.C. § 1182(a)(9)(B)(i)(I)-(II). An alien is also
inadmissible if he has been unlawfully present in the United States for an aggregate
period of more than one year and enters or attempts to re-enter the United States
without being admitted. INA § 212(a)(9)(C)(i)(I), 8 U.S.C. § 1182(a)(9)(C)(i)(I).
3

Case: 16-10224

Date Filed: 02/14/2017

Page: 4 of 7

According to the I-213 Record of Deportable/Inadmissible Alien form (“I213”), Martinez-Tovar voluntarily returned to Mexico in February 2001 after
encountering Border Patrol, and subsequently re-entered the United States without
being admitted or paroled. Thus, Martinez-Tovar would be inadmissible under
INA § 212(a)(9)(C)(i)(I), 8 U.S.C. § 1182(a)(9)(C)(i)(I), if he unlawfully resided in
the United States for more than a year prior to his February 2001 voluntary return,
and the record supports this. See INA § 212(a)(9)(C)(i)(I), 8 U.S.C.
§ 1182(a)(9)(C)(i)(I). In his cancellation of removal petition, Martinez-Tovar
claimed that he first entered the United States in October 1990, and again in
December 1990 and January 1993, and the record does not contain evidence that
he was removed or voluntarily returned until at least 2001. He also provided
addresses indicating that he had continuously lived and worked in Georgia since at
least January 1993. Therefore, based on the I-213’s statement that he was
voluntarily returned in 2001 and later re-entered without admission or parole,
Martinez-Tovar was inadmissible under INA § 212(a)(9)(C)(i)(I), 8 U.S.C.
§ 1182(a)(9)(C)(i)(I).
Although Martinez-Tovar opined that it may have been his son who
voluntarily returned in 2001, he actually testified under oath at his final removal
hearing that he did not remember the last time he re-entered the United States.
4

Case: 16-10224

Date Filed: 02/14/2017

Page: 5 of 7

Moreover, he had significant time to challenge the I-213 because it first appeared
in the record at his initial removal hearing in April 2012. It was also filed in
March 2013, giving him at least 11 months from this later date to challenge its
contents, which he failed to do. Therefore, because he was ineligible for a
provisional unlawful presence waiver and he had no other application for relief
pending, the BIA did not abuse its discretion in affirming the denial of a
continuance.
II.
We have an obligation to review our own jurisdiction in each case, and do so
de novo. See Chacon-Botero v. U.S. Att’y Gen., 427 F.3d 954, 956 (11th Cir.
2005). Under the INA, we may review a final order of removal only if the alien
has exhausted all administrative remedies available as of right. Taylor v. United
States, 396 F.3d 1322, 1327 (11th Cir. 2005); INA § 242(d)(1), 8 U.S.C.
§ 1252(d)(1). The exhaustion requirement is jurisdictional and precludes review of
a claim that was not presented to the BIA. Amaya-Artunduaga v. U.S. Att’y Gen.,
463 F.3d 1247, 1250. “[E]xhaustion serves the twin purposes of protecting
administrative agency authority and promoting judicial efficiency.” Sundar v. INS,
328 F.3d 1320, 1323 (11th Cir. 2003) (quotation omitted).
In order to properly raise a claim before the BIA, the petitioner must
mention the issue and discuss its merits, or at least contest the basis for the IJ’s
5

Case: 16-10224

Date Filed: 02/14/2017

Page: 6 of 7

decision. See Alim v. Gonzales, 446 F.3d 1239, 1254 (11th Cir. 2006) (noting that,
when a claim was mentioned in a petitioner’s brief to the BIA and was specifically
requested as relief, it was properly exhausted); see also Montano Cisneros v. U.S.
Att’y Gen., 514 F.3d 1224, 1228 n.3 (11th Cir. 2008) (holding that exhaustion
requires only that the petitioner argued the core issue before the BIA, and “hypertechnical” jurisdictional arguments from the government regarding the exhaustion
requirement were unavailing).
Under 8 U.S.C. § 1229a(c)(7), an alien has the option to file a motion to
reopen a final administrative order of removal within 90 days of that order.
Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1273 (11th Cir. 2005). One of the
grounds an alien may claim in his motion to reopen is ineffective assistance of
counsel. Id.
We lack jurisdiction to consider Martinez-Tovar’s ineffective assistance of
counsel claim. Because he did not raise this claim before the BIA, it is
unexhausted, and we are precluded from reviewing it. See Amaya-Artunduaga,
463 F.3d at 1250. While Martinez-Tovar retained his former counsel throughout
the duration of his removal proceedings and BIA appeals process, he had an
opportunity to file a motion to reopen his proceedings based on ineffective
assistance of counsel. See Dakane, 399 F.3d at 1273. Having failed to do so, his
claim is unexhausted.
6

Case: 16-10224

Date Filed: 02/14/2017

Page: 7 of 7

PETITION DENIED IN PART AND DISMISSED IN PART.

7