Jose Ugarte v. Attorney General United States

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: AMBRO, KRAUSE and NYGAARD, Circuit Judges. Total Pages: 5.

Case: 16-4255

Document: 003112642502

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Date Filed: 06/05/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-4255
___________
JOSE ALFONSO UGARTE,
a/k/a/ JOSE MENDOZA,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A041-495-108)
Immigration Judge: Honorable Daniel A. Morris
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 1, 2017
Before: AMBRO, KRAUSE and NYGAARD, Circuit Judges
(Opinion filed: June 5, 2017)
___________
OPINION*
___________
PER CURIAM

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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Jose Alfonso Ugarte petitions for review of his final order of removal. We will
deny the petition.
I.
Ugarte is a citizen of Peru who entered the United States in 1989 as a lawful
permanent resident. The Government previously placed him in removal proceedings, and
an Immigration Judge (“IJ”) granted him cancellation of removal. That grant of
cancellation rendered Ugarte statutorily ineligible to be granted cancellation again. See 8
U.S.C. § 1229b(c)(6); Taveras v. Att’y Gen., 731 F.3d 281, 283 n.2 (3d Cir. 2013).
In December 2015, the Government placed Ugarte in his present removal
proceedings by serving him with a notice to appear. The notice charged Ugarte with
removability under 8 U.S.C. § 1227(a)(2)(A)(ii) for having been convicted of two crimes
involving moral turpitude. The notice listed 14 New Jersey shoplifting-related
convictions, including two convictions following Ugarte’s grant of cancellation.
Ugarte appeared pro se at five hearings before three different IJs. At the second
hearing, IJ Alan A. Vomacka advised Ugarte that he might be eligible for cancellation
and asylum and then adjourned the hearing so that Ugarte could apply for relief. IJ
Vomacka apparently was unaware of Ugarte’s previous grant of cancellation.1 Ugarte
later filed an application for cancellation but not for asylum. At Ugarte’s final hearing

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IJ Vomacka noted that Ugarte appeared to satisfy the requirements of 8 U.S.C.
§ 1229b(a), and the Government’s counsel agreed. (A.R. 216.) The Government’s
counsel did not inform the IJ of Ugarte’s previous grant of cancellation at that time.
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before a different IJ, the Government finally informed the IJ of Ugarte’s previous grant of
cancellation. The Government entered into evidence the previous order granting Ugarte
cancellation under the same alien registration number (A.R. 259), and Ugarte admitted
having been granted cancellation before (A.R. 252). The IJ denied Ugarte’s application
for that reason. The IJ also found him removable and ordered his removal to Peru.
Ugarte appealed pro se to the Board of Immigration Appeals (“BIA”). In his
notice of appeal, he asserted merely that he was “in disagreement” with the IJ’s decision
but did not raise any argument. (A.R. 191.) Ugarte also submitted a “personal
statement” (A.R. 15-16), and a letter to the BIA (A.R. 26). Ugarte acknowledged the
basis for the IJ’s ruling in his letter, but he did not raise any argument in that regard.
Instead, he argued that cancellation was warranted on the merits because his convictions
were related to physical and psychological problems and drug and alcohol abuse. He also
submitted new evidence in the form of medical records.
The BIA dismissed Ugarte’s appeal because it agreed with the IJ that Ugarte was
statutorily ineligible for a second grant of cancellation. The BIA also declined to remand
for consideration of Ugarte’s new evidence because it was not relevant in light of his
ineligibility for relief. Ugarte petitions for review, and we have jurisdiction pursuant to 8
U.S.C. § 1252(a) except as noted below.
II.

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Ugarte’s sole argument on review is that, if IJ Vomacka had not advised him that
he might be eligible for cancellation, he would have applied for some other form of relief.
Ugarte does not specify any other form of relief that he would or could have sought or the
basis for such relief, and our review does not suggest any form of relief that might have
been available before the IJ.2
In any event, we lack jurisdiction to review this issue because Ugarte did not
exhaust it by raising it before the BIA and the BIA did not raise it sua sponte. See 8
U.S.C. § 1252(d)(1); Lin v. Att’y Gen., 543 F.3d 114, 120, 123-24 (3d Cir. 2008). Our
exhaustion policy is liberal, particularly for pro se litigants, and petitioners need only
make “some effort . . . to place the Board on notice of a straightforward issue being raised
on appeal.” Higgs v. Att’y Gen., 655 F.3d 333, 338 (3d Cir. 2011) (quoting Lin, 543
F.3d at 120). But however liberally construed, none of Ugarte’s filings suggested that he
sought relief on the basis of the IJ’s advice that he might be eligible for cancellation.
To the contrary, he argued only that cancellation was warranted on the merits.
The IJ, however, denied cancellation because Ugarte is statutorily ineligible for that relief
as explained above. Ugarte did not challenge that ruling before the BIA, and he does not
challenge it on review. Ugarte also has never raised any challenge to his removability.

During Ugarte’s final hearing, he stated that he wanted to seek relief on the basis of
physical assaults that he suffered in the United States. The IJ then questioned the
Government’s counsel about potential forms of relief, and the Government’s counsel
advised Ugarte that the proper way to seek relief in that regard was to apply for a “U
visa” from United States Citizenship and Immigration Service. (A.R. 255-56.) That
advice was correct. See Sunday v. Att’y Gen., 832 F.3d 211, 213 (3d Cir. 2016).
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III.
For these reasons, we will deny Ugarte’s petition for review.

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