Abraham Tufino Castillo v. Eric Holder, Jr.

Filing

UNPUBLISHED OPINION FILED. [10-60085 Dismissed for lack of jurisdiction] Judge: WED , Judge: JES , Judge: LHS Mandate pull date is 01/03/2011 [10-60085]

Abraham Tufino Castillosv.:Eric Holder, Jr.Document: 00511291502 Ca e 10-60085

Page: 1 Date Filed: 11/11/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-60085 S u m m a r y Calendar November 11, 2010 Lyle W. Cayce Clerk

A B R A H A M DAVID TUFINO CASTILLO, P e titio n e r, versu s E R I C H. HOLDER, JR., U.S. Attorney General, R esp on d en t.

P e t it io n for Review of an Order of t h e Board of Immigration Appeals N o . A088 840 233

B e fo r e DAVIS, SMITH, and SOUTHWICK, Circuit Judges. P E R CURIAM:*

A b r a h a m Tufino Castillo petitions for review of the decision of the Board

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Dockets.Justia.com

Case: 10-60085 Document: 00511291502 Page: 2 Date Filed: 11/11/2010 No. 10-60085 o f Immigration Appeals ("BIA") affirming the denial of his petition for cancellat io n of removal brought under 8 U.S.C. § 1229b. Tufino Castillo argues, for the fir s t time in this petition, that the immigration judge ("IJ") violated his right to d u e process by not affording him a fair hearing in support of his application for c a n c e lla tio n . " A court may review a final order of removal only if . . . the alien has exh a u s t e d all administrative remedies available to the alien as of right." 8 U.S.C. § 1252(d)(1). To satisfy the exhaustion requirement of § 1252(b)(1), a petitioner m u s t fairly present an issue to the BIA. Claudio v. Holder, 601 F.3d 316, 318 (5 t h Cir. 2010). Although claims of due process violations are generally not subje c t to the exhaustion requirement, exhaustion is required for claims of proced u r a l errors that the BIA has adequate mechanisms to address and remedy. Roy v . Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004). In such cases, it is irrelevant that t h e alleged procedural error is couched in terms of a due process violation. Id. Because Tufino Castillo's argument that the IJ failed to conduct a fair and a c c u r a t e hearing could have been addressed and remedied by the BIA, it is subje c t to the exhaustion requirement. See id. Accordingly, this court lacks jurisd ic t io n to consider the issue. Further, to the extent that Tufino Castillo challe n g e s the BIA's determination that he was not eligible for cancellation of remova l, this court lacks subject matter jurisdiction to review that discretionary decis io n . See Rueda v. Ashcroft, 380 F.3d 831, 831 (5th Cir. 2004). The petition for review is DISMISSED for want of jurisdiction.

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