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    Condermarin-Caceres v. Holder, JR., 10th Cir. (2011)

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    Rodolfo Rafael Condermarin-Caceres petitions for review of the BIA's dismissal of his appeal from the denial of his motion to reopen his in absentia removal proceedings. The BIA and IJ denied the motion because Condermarin-Caceres did not claim he did not receive notice of the removal hearing in his motion or brief to the BIA, failing to exhaust his administrative remedies. While he now argues he did not receive notice, the court lacks jurisdiction to consider this unexhausted contention and dismisses the petition for review.

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    Condermarin-Caceres v. Holder, JR., 10th Cir. (2011)

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    52 views5 pages
    Rodolfo Rafael Condermarin-Caceres petitions for review of the BIA's dismissal of his appeal from the denial of his motion to reopen his in absentia removal proceedings. The BIA and IJ denied the motion because Condermarin-Caceres did not claim he did not receive notice of the removal hearing in his motion or brief to the BIA, failing to exhaust his administrative remedies. While he now argues he did not receive notice, the court lacks jurisdiction to consider this unexhausted contention and dismisses the petition for review.

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    Filed: 2011-05-05 Precedential Status: Non-Precedential Docket: 10-9561

    Original Title

    Condermarin-Caceres v. Holder, Jr., 10th Cir. (2011)

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    Rodolfo Rafael Condermarin-Caceres petitions for review of the BIA's dismissal of his appeal from the denial of his motion to reopen his in absentia removal proceedings. The BIA and IJ denied the motion because Condermarin-Caceres did not claim he did not receive notice of the removal hearing in his motion or brief to the BIA, failing to exhaust his administrative remedies. While he now argues he did not receive notice, the court lacks jurisdiction to consider this unexhausted contention and dismisses the petition for review.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    52 views5 pages

    Condermarin-Caceres v. Holder, JR., 10th Cir. (2011)

    Uploaded by

    Scribd Government Docs
    Rodolfo Rafael Condermarin-Caceres petitions for review of the BIA's dismissal of his appeal from the denial of his motion to reopen his in absentia removal proceedings. The BIA and IJ denied the motion because Condermarin-Caceres did not claim he did not receive notice of the removal hearing in his motion or brief to the BIA, failing to exhaust his administrative remedies. While he now argues he did not receive notice, the court lacks jurisdiction to consider this unexhausted contention and dismisses the petition for review.

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    of 5

    FILED

    United States Court of Appeals


    Tenth Circuit

    May 5, 2011
    UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
    FOR THE TENTH CIRCUIT

    Clerk of Court

    RODOLFO RAFAEL
    CONDERMARIN-CACERES,
    Petitioner,
    No. 10-9561
    (Petition for Review)

    v.
    ERIC H. HOLDER, JR., Attorney
    General of the United States,
    Respondent.

    ORDER AND JUDGMENT *

    Before OBRIEN, ANDERSON, and HOLMES, Circuit Judges.

    Rodolfo Rafael Condermarin-Caceres petitions for our review of a Bureau


    of Immigration Appeals (BIA) decision dismissing his appeal from the denial of a
    motion to reopen his removal proceedings. Because petitioner did not exhaust the
    issues he now raises, we dismiss the petition for review.

    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of
    this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
    therefore ordered submitted without oral argument. This order and judgment is
    not binding precedent, except under the doctrines of law of the case, res judicata,
    and collateral estoppel. It may be cited, however, for its persuasive value
    consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

    Petitioner failed to appear for his removal hearing before the Immigration
    Judge (IJ), thereby abandoning any applications for relief from removal. Admin.
    R. at 61. Upon finding the requisite written notice of the hearing had been given
    and the charge of removability established by the evidence, the IJ ordered
    petitioner removed in absentia. Id. Three years later, after he had married a U.S.
    citizen who filed a Petition for Alien Relative on his behalf, petitioner moved to
    reopen. As relevant here, an in absentia removal order may be rescinded through
    a motion to reopen on two grounds: the alien demonstrates that the failure to
    appear was because of exceptional circumstances, provided the motion to reopen
    is filed within 180 days of the removal order, 8 U.S.C. 1229a(b)(5)(C)(i); or
    the alien demonstrates that the alien did not receive notice [of the removal
    hearing] in accordance with paragraph (1) or (2) of section 1229(a), 1 in which
    case the motion may be filed at any time, id. 1229a(b)(5)(C)(ii).
    Petitioners motion to reopen did not raise any issue about notice, relying
    instead (despite temporal problems) on an exceptional-circumstances argument.
    In denying the motion, the IJ specifically noted entry of the in absentia order
    was appropriate because [petitioner] was properly notified of the proceedings and
    because [he] does not allege he did not receive notice. Admin. R. at 33
    (emphasis added). The IJ rejected the exceptional-circumstances argument as

    It is sufficient if written notice is sent to the last known address provided


    by the alien. 8 U.S.C. 1229a(b)(5)(A), 1229(a)(1)(F).
    -2-

    both untimely and meritless (petitioners subsequent marriage to a U.S. citizen is


    not an exceptional circumstance which caused his failure to appear). Id. On
    appeal to the BIA, petitioner again raised no issue regarding notice. The BIA
    agree[d] with the [IJs] denial of [petitioners] motion to reopen, id. at 3, and
    dismissed the appeal, id. at 4.
    Although variously framed in terms of improper factfinding, erroneous
    application of evidentiary standards, and even constitutional error, all of the
    objections petitioner now raises to the denial of his motion to reopen rest on the
    basic premise that he did not receive notice of his removal hearing and the IJ and
    BIA erred in failing to so find and grant his motion to reopen. But his motion to
    reopen and brief to the BIA never challenged receipt of notice. Citing this
    omission, the government insists we should dismiss this petition for review for
    failure to exhaust administrative remedies, under the rule of Rivera-Zurita v. INS,
    946 F.2d 118, 120 n.2 (10th Cir. 1991) (The failure to raise an issue on appeal to
    the [BIA] constitutes failure to exhaust administrative remedies with respect to
    that question and deprives the Court of Appeals of jurisdiction to hear the
    matter.). See also Torres de la Cruz v. Maurer, 483 F.3d 1013, 1017 (10th Cir.
    2007); Vatulev v. Ashcroft, 354 F.3d 1207, 1211 (10th Cir. 2003). We agree.
    The government notes this court has recognized a significant attenuating
    gloss on the exhaustion requirement, but argues it does not apply on the facts

    -3-

    here. 2 In Sidabutar v. Gonzales, 503 F.3d 1116, 1122 (10th Cir. 2007), we held
    issues not raised by an alien may still be deemed exhausted if they were decided
    sua sponte in administrative proceedings. But Sidubutars sua sponte
    exhaustion rule . . . is a narrow one. Garcia-Carbajal v. Holder, 625 F.3d
    1233, 1235 (10th Cir. 2010). For it to apply, the BIA must: (1) clearly identify
    a claim, issue, or argument not presented by the petitioner; (2) exercise its
    discretion to entertain the matter; and (3) explicitly decide that matter in a full
    explanatory opinion or substantive discussion. Id.
    Here, the BIA noted the record reflects . . . the notice of hearing was
    mailed to [petitioners] last known address, Admin. R. at 3, but that does not
    identify as an issue, much less explicitly decide, whether he actually received the
    notice. 3 The BIA got closer when it found [petitioner] has not demonstrated a
    lack of notice. Id. But, given the IJs express acknowledgment that petitioner
    was not disclaiming receipt of the notice, and the absence of any argument on that
    point in his brief to the BIA, there is no basis for construing the BIAs language
    as anything more than it actually was, merely a recognition that petitioner had not
    demonstratedindeed, had made no attempt to demonstratea lack of notice (and
    2

    Petitioner, who failed to anticipate the governments exhaustion objection


    in his opening brief and chose not to file a reply brief, has left the governments
    discussion of this critical point effectively unopposed.
    3

    We note petitioner also objects, in passing, that the address used for the
    notice of hearing was deficient, in that it lacked an apartment number. This point
    was likewise never made to or explicitly resolved by the BIA.
    -4-

    it would have been his burden to do so, Thongphilack v. Gonzales, 506 F.3d 1207,
    1209 (10th Cir. 2007)). That falls well short of the BIA clearly identifying and
    then exercising its discretion to explicitly decide the distinct question whether the
    record affirmatively established petitioner did in fact receive the notice (a finding
    that did not need to be made precisely because he had not disputed the point).
    Whenever an agency states a conclusion . . .[,] it impliedly rejects any
    number of unmade potential arguments. But that doesnt mean the agency
    noticed those arguments, let alone considered and ruled on them. Id. at 1239.
    All of the strict requirements for sua sponte exhaustion must be clearly satisfied
    in order to accord the agency the deference to which it is entitled. Id. Thus,
    sua sponte exhaustion will be the rare exception, not the rule. Id. at 1238. This
    rare exception does not apply here.
    We lack jurisdiction to consider petitioners overarching contention that he
    did not receive notice of the removal hearing. As all of his assignments of error
    are inextricably based on that contention, we must dismiss the petition for review.
    The petition for review is DISMISSED.

    Entered for the Court

    Terrence L. OBrien
    Circuit Judge

    -5-

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