Guadalupe Munoz v. Eric Holder, Jr.

Filing

Case: 09-60177

Document: 00511202224

Page: 1

Date Filed: 08/12/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-60177 S u m m a r y Calendar August 12, 2010 Lyle W. Cayce Clerk

G U A D A L U P E MUNOZ, P e titio n e r v. E R I C H. HOLDER, JR., U.S. ATTORNEY GENERAL, R espon dent

P e tit io n for Review of an Order of the B o a r d of Immigration Appeals B I A No. A73 971 600

B e fo r e BARKSDALE, DENNIS, and OWEN, Circuit Judges. P E R CURIAM:* G u a d a lu p e Munoz, a native and citizen of Mexico, petitions for review of a n order of the Board of Immigration Appeals (BIA) dismissing the appeal of an o r d e r of removal and an order of the BIA denying her motion to reconsider and reopen . Munoz asserts that the BIA erred by engaging in impermissible

fa c t fin d in g when it stated that Munoz claimed on appeal that the Immigration J u d g e (IJ) improperly denied voluntary departure and that no evidence existed in the record that Munoz had applied for this form of relief. Asserting that,
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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Case: 09-60177

Document: 00511202224 Page: 2 No. 09-60177

Date Filed: 08/12/2010

u n d e r 8 C.F.R. § 1003.1(d)(3)(iv), the BIA lacks the power to make findings of fa c t in the first instance, she requests that this court vacate the BIA decisions a n d remand the matter to the BIA for further consideration. A court can review a final order of removal only when "the alien has e x h a u s t e d all administrative remedies available to the alien as of right". 8 U.S.C. § 1252(d); Omari v. Holder, 562 F.3d 314, 318 (5th Cir. 2009). "Petitioners fail to exhaust their administrative remedies as to an issue if they d o not first raise the issue before the BIA, either on direct appeal or in a motion t o reopen." See Omari, 562 F.3d at 318 (citing Heaven v. Gonzales, 473 F.3d 167, 1 7 7 (5th Cir. 2006); Wang v. Ashcroft, 260 F.3d 448, 452-53 (5th Cir. 2001)). An e x c e p t io n to the exhaustion requirement exists for claims of due-process v io la t io n s , "except for procedural errors that are correctable by the BIA". Roy v . Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004). Contrary to Munoz' assertions, her motion to reconsider and reopen n e ith e r reasserted her initial due-process claim relating to voluntary departure n o r asserted the claim she now presents to this court--that the BIA engaged in im p e r m is s i b l e factfinding when it determined that no evidence existed in the r e c o r d that Munoz had applied for voluntary departure. Munoz' motion to r e c o n s id e r and reopen was an available and adequate means of presenting this c la im e d error to the BIA before asserting it here, which is required under § 1 2 5 2 (d ). See Omari, 562 F.3d at 320-21. "Because [Munoz] has failed to exhaust [h e r ] administrative remedies as to this issue, § 1252(d) jurisdictionally bars [t h is court] from addressing it." Id. at 321. M u n o z also asserts that the BIA erred in denying cancellation of removal a n d in not addressing certain challenges concerning the IJ's bias and Munoz' a s y lu m application. Under 8 U.S.C. § 1252(a)(2)(B)(i), this court generally does n o t have jurisdiction to review any judgment regarding the granting or denying o f discretionary relief in the form of cancellation of removal. Where the appeal in v o lv e s constitutional claims or questions of law, this court does have 2

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Document: 00511202224 Page: 3 No. 09-60177

Date Filed: 08/12/2010

ju r is d ic t io n . See 8 U.S.C. § 1252(a)(2)(D). Although Munoz attempts to claim o t h e r w is e , essentially, she disagrees with the discretionary decision to deny c a n c e lla t io n of removal. Munoz' appeal does not involve a constitutional claim o r a question of law. Accordingly, we lack jurisdiction to review this issue. See R u e d a v. Ashcroft, 380 F.3d 831, 831 (5th Cir. 2004) M u n o z also contends that, because the BIA failed to specifically address c e r t a in issues, it failed to give meaningful consideration to her appeal and m o t io n to reconsider and reopen. Even if the BIA's decision does not touch on e v e r y disputed fact, it does not mean that the BIA did not consider all of Munoz' p r e s e n t e d facts and allegations. See Osuchukwu v. INS, 744 F.2d 1136, 1142-43 (5 t h Cir. 1984) ("[The BIA] has no duty to write an exegesis on every contention. What is required is merely that it consider the issues raised, and announce its d e c is io n in terms sufficient to enable a reviewing court to perceive that it has h e a r d and thought and not merely reacted".). The BIA considered Munoz' stated is s u e s . F in a lly , to the extent Munoz claims her due-process rights were violated b e c a u s e the IJ exhibited bias against her, her claims are unavailing. Munoz has fa ile d to demonstrate that the IJ either held a personal bias against her or d e m o n s t r a t e d pervasive bias and prejudice. See Matter of Exame, 18 I & N Dec. 3 0 3 , 306 (BIA 1982); see also Brinkmann v. Dallas County Deputy Sheriff Abner, 8 1 3 F.2d 744, 748 (5th Cir. 1987). D IS M IS S E D .

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