Cipriano Martinez-Rubio v. U.S. Attorney General, No. 13-12519 (11th Cir. 2014)

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Case: 13-12519 Date Filed: 04/30/2014 Page: 1 of 5 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 13-12519 Non-Argument Calendar ________________________ Agency No. A089-285-061 CIPRIANO MARTINEZ-RUBIO, a.k.a. Cipriano Martinez, a.k.a. Ciprino Martinez-Rubin, a.k.a. Rubio Martinez-Cipriano, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ Petition for Review of a Decision of the Board of Immigration Appeals ________________________ (April 30, 2014) Before TJOFLAT, HULL and MARCUS, Circuit Judges. TJOFLAT, Circuit Judge: Case: 13-12519 Date Filed: 04/30/2014 Page: 2 of 5 Cipriano Martinez-Rubio, the Petitioner, seeks this court s review of the Board of Immigration Appeals s (the BIA ) decision dismissing his appeal of the Immigration Judge s (the IJ ) denial of his application for cancellation of removal. In the brief he filed in support of his petition, Petitioner argues that the BIA violated its regulatory duty by failing to review the IJ s factual findings, Petitioner s Br. at 12, pursuant to 8 C.F.R. § 1003.1(d)(3)(i).1 The BIA purportedly shirked this duty because there was evidence in the record establishing that the IJ s factual findings about his family s good health were clearly erroneous. Alternatively, assuming that the BIA reviewed the findings, Petitioner argues the review was deficient because it ignored material record evidence, Petitioner s Br. at 18, including documentation about his daughter s significant medical conditions. The Attorney General argues that we do not have jurisdiction to hear the claim, pursuant to Immigration and Nationality Act ( INA ) § 242(a)(2)(B), 8 1 8 C.F.R. § 1003.1, Organization, jurisdiction, and powers of the Board of Immigration Appeals, provides, in pertinent part: (d) Powers of the Board ... (3) Scope of review. (i) The Board will not engage in de novo review of findings of fact determined by an immigration judge. Facts determined by the immigration judge, including findings as to the credibility of testimony, shall be reviewed only to determine whether the findings of the immigration judge are clearly erroneous. 8 C.F.R. § 1003.1(d)(3)(i). 2 Case: 13-12519 Date Filed: 04/30/2014 Page: 3 of 5 U.S.C. § 1252(a)(2)(B), because the denial of cancellation of removal is a discretionary decision not subject to appellate review.2 The Attorney General . . . has discretion to cancel the removal of a nonpermanent resident if that alien has (A) a continuous physical presence of not less than 10 years, (B) good moral character, (C) a lack of certain criminal convictions, and (D) establishes exceptional and extremely unusual hardship to a qualifying relative. Gonzalez-Oropeza v. U.S. Att y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003) (citing INA § 240A(b)(1), 8 U.S.C. § 1229b(b)(1)). Assuming the alien has established the first three points, whether the alien s removal is cancelled turns on whether the Attorney General decides that the alien s removal would subject a qualifying relative in this case, Petitioner s children to exceptional and extremely unusual hardship. That decision is a discretionary call and, as such, is not subject to judicial review. 8 U.S.C. § 1252(a)(2)(B); 3 Gonzalez-Oropeza, 321 F.3d at 1332 33; Najjar v. Ashcroft, 257 F.3d 1262, 1297 98 (11th Cir. 2001). Notwithstanding this jurisdictional bar, though, § 1252(a)(2)(B) affords judicial review of a cancellation-of-removal decision that presents a genuine . . . question of law, Jimenez-Galicia v. U.S. Att y Gen., 690 F.3d 1207, 1209 (11th Cir. 2012), 2 We review de novo the question the Attorney General poses, whether we have jurisdiction to review the BIA s decision. See Wu v. U.S. Att y Gen., 712 F.3d 486, 492 (11th Cir. 2013). 3 8 U.S.C. § 1252, Judicial review of orders of removal, states in subsection (a)(2)(B) that [m]atters not subject to judicial review include [d]enials of discretionary relief. 3 Case: 13-12519 Date Filed: 04/30/2014 Page: 4 of 5 cert. denied, 133 S. Ct. 2824 (2013), which we review de novo, Zhu v. U.S. Att y Gen., 703 F.3d 1303, 1307 (11th Cir. 2013). Petitioner s argument that the BIA violated its regulatory duty by failing to review the IJ s factual findings presents a question of law. The BIA reviews an IJ s factual findings for clear error. 8 C.F.R. § 1003.1(d)(3)(i)4; Zhu, 703 F.3d at 1305, 1308 09. In order to review an IJ s factual findings for clear error, the appealing petitioner must identify and inform the BIA of the factual finding that, he contends, is clearly erroneous. That is, he must exhaust the administrative remedy the law provides him; he must ask the BIA to set aside the finding. INA § 242(d)(1); 8 U.S.C. § 1252(d)(1). 5 The presence of this statutory exhaustion requirement means that the BIA is not required to review each of the IJ s factual findings on its own initiative. This explains why, in Amaya-Artunduaga v. U.S. Att y Gen., 463 F.3d 1247, 1250 51 (11th Cir. 2006), we dismissed a petition asking us to review the BIA s sua sponte review of the IJ s adverse credibility finding.6 4 See supra note 1. The clearly erroneous standard adopted in § 1003.1(d)(3)(i) was intended to reflect the clearly erroneous standard used by federal appellate courts. Zhu v. U.S. Att y Gen., 703 F.3d 1303, 1309 10 (11th Cir. 2013). 5 8 U.S.C. § 1252, Judicial review of orders of removal, states in subsection (d) that [a] court may review a final order of removal only if--(1) the alien has exhausted all administrative remedies available to the alien as of right. 6 The court s opinion in Amaya-Artunduaga v. U.S. Att y Gen. seems to imply that 8 U.S.C. § 1252(d)(1) contains an excuse or exception to its exhaustion requirement. AmayaArtunduaga v. U.S. Atty. Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). As the Amaya-Artunduaga 4 Case: 13-12519 Date Filed: 04/30/2014 Page: 5 of 5 Although the petition for review before us presents a question of law, we decline to consider the question because to do so would sanction Petitioner s avoidance of § 1252(d)(1) s exhaustion requirement. His petition for review is therefore denied. PETITION DENIED. panel put it, circuit precedent clearly states that, absent a cognizable excuse or exception, we lack jurisdiction to consider claims that have not been raised before the BIA. Id. (quoting Sundar v. I.N.S., 328 F.3d 1320, 1323 (11th Cir. 2003)). Sundar was an appeal of the District Court s denial of a petition for a writ of habeas corpus under 28 U.S.C. § 2241. Sundar, 328 F.3d at 1321. The question [before the court was] whether § 1252(d)(1) s exhaustion requirement applies in § 2241 habeas proceedings or only in direct appeals to this Court from the BIA. Sundar, 328 F.3d at 1321. The court concluded that it applies. Id. The court then addressed the question of whether perceived futility provided an exception to the exhaustion requirement of the habeas statute, 29 U.S.C. § 2254, and concluded that it did not with this statement: The decision in Engle v. Isaac, 456 U.S. 107, 130, 102 S. Ct. 1558, 1573, 71 L. Ed. 2d 783 (1982), establishes that perceived futility is no exception to the exhaustion requirement contained in 28 U.S.C. § 2254, and it should not be an exception to the one contained in 8 U.S.C. § 1252(d)(1), either. Sundar, 328 F.3d at 1325. Because the Sundar court was deciding whether the habeas statute contained a perceived futility exception to its exhaustion doctrine and because Petitioner does not argue that he did not need to identify the IJ factual findings he considered clearly erroneous, we consider the court s reference to § 1252(d)(1) as dicta and, moreover, need not explore the possibility that § 1252(d)(1) provides an excuse or exception that would allow a petitioner to insist that the BIA examine sua sponte an IJ s factual findings. 5

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