Rosaura Sola v. Eric Holder, Jr.
FILED PER CURIAM OPINION (DIARMUID F. O'SCANNLAIN, RICHARD A. PAEZ and SANDRA S. IKUTA) DISMISSED. FILED AND ENTERED JUDGMENT. 
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROSAURA SOLA ,
ERIC H. HOLDER, JR., Attorney
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
May 9, 2013—Pasadena, California
Filed June 27, 2013
Before: Diarmuid F. O’Scannlain, Richard A. Paez, and
Sandra S. Ikuta, Circuit Judges.
Per Curiam Opinion
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SOLA V . HOLDER
The panel dismissed for lack of jurisdiction Rosaura
Sola’s petition for review of the Board of Immigration
Appeals’ decision finding her removable and denying her
temporary protective status relief.
The panel held that Sola failed to exhaust the only issue
raised in her petition for review, an argument that the
government denied her due process by placing her in removal
proceedings without her husband. The panel held that Sola’s
claim did not fall within the exhaustion exception for
constitutional challenges to the immigration laws and
procedures, because the IJ or BIA could have addressed it by
granting her a continuance until she and her husband could be
placed in removal proceedings together.
Jaime Jasso (argued), Westlake Village, CA for Petitioner.
Tony West, Assistant Attorney General, David V. Bernal,
Assistant Director, and Jesse M. Bless (argued), Trial
Attorney, Office of Immigration Litigation, Civil Division,
U.S. Department of Justice, Washington, D.C., for
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
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SOLA V . HOLDER
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Petitioner Rosaura Sola, a native and citizen of Mexico,
petitions for review of the Board of Immigration Appeals
(BIA) order affirming an Immigration Judge’s (IJ) decision
finding Sola removable, denying her temporary protective
status (TPS) relief, and granting her voluntary departure in
lieu of removal. Because Sola failed to exhaust the only issue
raised in her petition for review, we dismiss the petition for
lack of jurisdiction. 8 U.S.C. § 1252(d)(1).
Sola’s husband, Ebelio Sola Rosa (Ebelio Rosa), is a
native and citizen of El Salvador. He affirmatively applied
for asylum under 8 U.S.C. § 1158 and special rule
cancellation of removal under the Nicaraguan Adjustment
and Central American Relief Act (NACARA), Pub. L. No.
105-100, 111 Stat. 2160 (1997), as amended by Pub. L. No.
105-139, 111 Stat. 2644 (1997); see also 8 C.F.R. § 1240.66.
Both these forms of relief are available to an applicant’s
spouse and children as derivative beneficiaries of the
8 U.S.C. § 1158(b)(3)(A); 8 C.F.R.
§ 1240.61(a)(4). Sola submitted an affirmative application
for NACARA relief as well. Her application rested on her
status as a derivative beneficiary of Ebelio Rosa, however,
and she was therefore entitled to relief under NACARA only
if Ebelio’s application was granted. Their affirmative
applications were denied. At this point, Sola was placed into
removal proceedings. But Ebelio Sola Rosa was not placed
into removal proceedings because he was granted TPS under
8 U.S.C. § 1254a.
SOLA V . HOLDER
If Ebelio Sola Rosa is ever placed in removal
proceedings, he will have the opportunity to have his
NACARA and asylum claims re-adjudicated before an IJ.
Petitioner Sola argues that she was denied due process when
the government placed her in removal proceedings without
her husband because she is unable to assert her claims to
derivative relief on the basis of her husband’s NACARA and
asylum claims. If she were placed in removal proceedings at
the same time as her husband, he would be able to pursue
those claims again and she could then pursue her derivative
claims as well.
Sola did not raise this due process argument before the IJ
or the BIA. This court may review a final order of removal
only if “the alien has exhausted all administrative remedies
available to the alien as of right.” 8 U.S.C. § 1252(d)(1). A
petitioner’s failure to raise an issue before the BIA generally
constitutes a failure to exhaust, thus depriving this court of
jurisdiction to consider the issue. See Barron v. Ashcroft, 358
F.3d 674, 678 (9th Cir. 2004). However, “[a]n exception to
the exhaustion requirement has been carved for constitutional
challenges to the Immigration and Naturalization Act and INS
procedures,” Rashtabadi v. INS, 23 F.3d 1562, 1567 (9th Cir.
1994), because “[t]he BIA does not have jurisdiction to
determine the constitutionality of the statutes it administers,”
Padilla-Padilla v. Gonzales, 463 F.3d 972, 977 (9th Cir.
Not all due process claims fall within this exhaustion
exception. “The key is to distinguish the procedural errors,
constitutional or otherwise, that are correctable by the
administrative tribunal from those that lie outside the BIA’s
ken.” Liu v. Waters, 55 F.3d 421, 426 (9th Cir. 1995). In
other words, “[c]hallenges to procedural errors correctable by
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SOLA V . HOLDER
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the administrative tribunal, must be exhausted before we
undertake review.” Sanchez-Cruz v. INS, 255 F.3d 775, 780
(9th Cir. 2001) (internal quotation marks omitted); see also
Barron, 358 F.3d at 676–78 (requiring exhaustion of a due
process claim based on alleged absence of counsel and lack
of opportunity to present a case).
In this case, we agree with the government’s assertion at
oral argument that the IJ or BIA could have addressed Sola’s
due process argument, if they found it to be meritorious, by
granting her a continuance until such time that both she and
her husband could be placed in removal proceedings together.
Under 8 C.F.R. § 1003.29, “[t]he Immigration Judge may
grant a motion for continuance for good cause shown.”
Certainly, a potential due process violation, if Sola could
establish one, would constitute “good cause.” Id.; see Cruz
Rendon v. Holder, 603 F.3d 1104, 1111 (9th Cir. 2010)
(holding that the IJ abused her discretion by denying a
continuance and the denial of the continuance, in conjunction
with other limits placed on the petitioner’s testimony,
prevented the petitioner “from fully and fairly presenting her
If Sola had raised this due process issue before the IJ or
BIA in the context of requesting a continuance, that would
have preserved the due process claim for appeal to this court
without short-circuiting the agency’s “opportunity to correct
its own errors.” Arsdi v. Holder, 659 F.3d 925, 928 (9th Cir.
2011) (internal quotation marks omitted). This court would
then have had jurisdiction to review the denial of the
continuance for abuse of discretion, and to review de novo
the underlying due process claim. See An Na Peng v. Holder,
673 F.3d 1248, 1254 (9th Cir. 2012) (reviewing de novo the
BIA’s legal conclusion underlying the denial of a
SOLA V . HOLDER
continuance); Ahmed v. Holder, 569 F.3d 1009, 1012 (9th
Cir. 2009) (“We review for abuse of discretion an IJ’s denial
of a continuance.”); see also Jiang v. Holder, 658 F.3d 1118,
1120 (9th Cir. 2011) (holding that the IJ’s denial of a
continuance was an abuse of discretion); Malilia v. Holder,
632 F.3d 598, 607 (9th Cir. 2011) (same).
Because the IJ or BIA could have addressed Sola’s claim
if she had raised it, her claim does not fall within the
exception to the exhaustion requirement. Since Sola failed to
exhaust her claim, we do not have jurisdiction to consider the
only issue raised in her petition for review. 8 U.S.C.
§ 1252(d)(1). Therefore, we dismiss the petition for lack of
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