Luis Sagastume-Montiel v. U.S. Attorney General

Filing

Opinion issued by court as to Petitioner Luis Eduardo Sagastume-Montiel. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. Petition DENIED in part and DISMISSED in part. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-12028

Date Filed: 01/17/2017

Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-12028
Non-Argument Calendar
________________________
Agency No. A094-806-031

LUIS EDUARDO SAGASTUME-MONTIEL,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(January 17, 2017)
Before HULL, WILSON and WILLIAM PRYOR, Circuit Judges.
PER CURIAM:

Case: 16-12028

Date Filed: 01/17/2017

Page: 2 of 4

Luis Eduardo Sagastume-Montiel, a native and citizen of Guatemala,
petitions for review of an order affirming the denial of his application for
cancellation of removal. See 8 U.S.C. § 1229b(b)(1). The Board of Immigration
Appeals affirmed the finding that Sagastume-Montiel was removable as an
inadmissible alien by virtue of being an applicant for admission to the United
States without a valid entry document. See id. § 1182(a)(7)(A)(i)(I). SagastumeMontiel argues that he was not an applicant for admission because he was allowed
to reenter the country under an advance authorization for parole. SagastumeMontiel also argues that, even if he was an applicant, his advance parole was a
“valid entry document” that entitled him to admission to the country. We deny in
part and dismiss in part Sagastume-Montiel’s petition.
The Board did not err in finding that Sagastume-Montiel was an
inadmissible alien. In 1998, Sagastume-Montiel entered the United States on a
nonimmigrant visa, but he remained in the country without authorization and was
arrested after misrepresenting that he was a U.S. citizen. After SagastumeMontiel’s immigration proceedings were deferred, he received advance
authorization for parole and left the country. Sagastume-Montiel returned to the
United States as an inadmissible alien. “[A]t the time of application for
admission,” Sagastume-Montiel was “not in possession of a valid unexpired
immigrant visa, reentry permit, border crossing identification card, or other valid
2

Case: 16-12028

Date Filed: 01/17/2017

Page: 3 of 4

entry document required by this chapter, and a valid unexpired passport, or other
suitable travel document, or document of identity and nationality.” Id. Although
Sagastume-Montiel was paroled into the United States, “such parole . . . [was]
not . . . regarded as an admission” and it was immediately terminated, which
resulted in him being “dealt with . . . as that of any other applicant for admission to
the United States.” See id. § 1182(d)(5)(A); see also id. § 1101(a)(13)(B) (“An
alien who is paroled under section 1182(d)(5) of this title . . . shall not be
considered to have been admitted.”). Parole “allowed [Sagastume-Montiel] into the
country but [he] remain[ed] constructively at the border, seeking admission and
subject to exclusion proceedings.” See Assa’ad v. U.S. Att’y Gen., 332 F.3d 1321,
1338 (11th Cir. 2003); see also Leng May Ma v. Barber, 357 U.S. 185, 190 (1958)
(“parole . . . is simply a device through which needless confinement is avoided
while administrative proceedings are conducted” and “was never intended to affect
an alien’s status”). We deny that part of Sagastume-Montiel’s petition challenging
his classification as an inadmissible alien.
We lack jurisdiction to review whether Sagastume-Montiel’s advance parole
served as a valid entry document. That issue was not addressed during SagastumeMontiel’s removal hearing or in his appeal to the Board. See Lin v. U.S. Att’y Gen.,
555 F.3d 1310, 1316–17 n.5 (11th Cir. 2009). “We lack jurisdiction to consider a
claim raised in a petition for review unless the petitioner has exhausted his
3

Case: 16-12028

Date Filed: 01/17/2017

Page: 4 of 4

administrative remedies with respect thereto.” Amaya–Artunduaga v. U.S. Att’y
Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). We dismiss this part of SagastumeMontiel’s petition.
PETITION DENIED IN PART AND DISMISSED IN PART.

4