Unpublished Disposition, 917 F.2d 27 (9th Cir. 1990)

MEMORANDUM^** 

Juan Hernandez-Jacobo appeals from the Board of Immigration Appeals' (BIA) affirmance of the Immigration Judge's (IJ) order denying voluntary departure. Hernandez-Jacobo argues that the BIA abused its discretion by finding that he had waived his right to counsel and by failing to consider all relevant factors. We affirm.

* Right to Counsel

The Immigration and Naturalization Service (INS) contends that this court lacks jurisdiction to decide whether Hernandez-Jacobo waived his statutory right to counsel because Hernandez-Jacobo failed to exhaust his administrative remedies by not raising the issue before the BIA. We agree.

Jurisdiction is a question of law which we review de novo. United States v. Moncini, 882 F.2d 401, 403 (9th Cir. 1989). Absent overriding justification, an alien must exhaust his administrative remedies prior to seeking review of a deportation order. Vargas v. United States Dep't. of Immigration, 831 F.2d 906, 907 (9th Cir. 1987). Failure to raise an issue in an appeal to the BIA constitutes a failure to exhaust remedies with respect to that question and deprives this court of jurisdiction to hear the matter. Id. at 908. Although the BIA does not have jurisdiction to adjudicate constitutional issues, Bagues-Valles v. INS, 779 F.2d 483, 484 (9th Cir. 1985), no constitutional issues are implicated here because Hernandez-Jacobo based his claim on a statute, there being no Sixth Amendment right to counsel in deportation proceedings. Ramirez v. INS, 550 F.2d 560, 563 (9th Cir. 1977).

Upon appeal to the BIA, Hernandez-Jacobo challenged the IJ's discretionary decision to deny him voluntary departure, asserting only that his recent marriage to a United States citizen and his steady job necessitated a different result. ER at 10. Hernandez-Jacobo's failure to raise the issue of whether he had competently and understandingly waived his statutory right to counsel constitutes a failure to exhaust administrative remedies. See Vargas, 831 F.2d at 908. Consequently, we have no jurisdiction to review this claim. See id.

II

Voluntary Departure

Hernandez-Jacobo asserts that the BIA abused its discretion in denying his application for voluntary departure by failing to consider all of the relevant factors. We review the BIA's exercise of discretion to determine whether its decision to deny voluntary departure was arbitrary and capricious. Cunanan v. INS, 856 F.2d 1373, 1374 (9th Cir. 1988); Cuevas-Ortega v. INS, 588 F.2d 1274, 1278 (9th Cir. 1979).

To receive a grant for voluntary departure, the applicant must meet both burdens of demonstrating statutory eligibility and demonstrating equities to merit the favorable exercise of discretion. Villanueva-Franco v. INS, 802 F.2d 327, 329 (9th Cir. 1986). Once an applicant fails to meet his burden of demonstrating equities to merit favorable discretion, the court or agency need not "arrive at purely advisory findings and conclusions as to statutory eligibility." INS v. Bagamasbad, 429 U.S. 24, 26, 97 S. Ct. 200, 50 L. Ed. 2d 190, 192-93 (1976). However, as to issues raised, the BIA must "set [ ] out terms sufficient to enable us as a reviewing court to see that the Board has heard, considered, and decided." Villanueva-Franco, 802 F.2d at 330.

Like Hernandez-Jacobo, the alien in Villanueva-Franco reentered the United States without inspection after already establishing a criminal record,¹  married a United States citizen, and landed a steady job. Id. at 328-29. When an IJ ordered the alien deported and the BIA affirmed, he appealed to this court, contending that the BIA had disregarded some relevant factors. Id. at 329-30. We affirmed the decision of the BIA, noting that the BIA had recognized the alien's marriage and professed rehabilitation and expressly concluded that those favorable equities did not outweigh his criminal record. Id. at 330.

Similarly, the BIA set out its reasons for denying Hernandez-Jacobo voluntary departure, expressly concluding that Hernandez-Jacobo's marriage to a United States citizen and his steady job did not "sufficiently offset the adverse factors" of his evasion of immigration laws and criminal convictions. ER at 2. These two favorable factors are the only ones raised by Hernandez-Jacobo, who bore the burden of proving he merited a favorable exercise of discretion. Thus, the BIA did not abuse its discretion by denying Hernandez-Jacobo voluntary departure.

The decision of the BIA is

AFFIRMED.