Ayala Chapa v. Garland, No. 21-60039 (5th Cir. 2023)
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The Department of Homeland Security charged him with removability under the Immigration and Nationality Act (“INA”). Petitioner admitted the factual allegations and conceded the charge of removability. Petitioner applied for cancellation of removal, withholding of removal, and protection under the Convention Against Torture. The immigration judge (“IJ”) denied his application for all claims. Petitioner appealed to the Board of Immigration Appeals (“BIA”). The BIA dismissed the appeal. Petitioner petitioned for review in the Fifth Circuit, and he only preserved his cancellation of removal claim.
The Fifth Circuit dismissed the appeal and held that it lacked jurisdiction to review either decision. The court explained that Section 1252(d)(1)’s exhaustion requirement applies to claims alleging defects in the BIA proceedings that the BIA “never had a chance to consider” because they arise “only as a consequence of the Board’s error.” Moreover, “when a petitioner seeks to raise a claim not presented to the BIA and the claim is one that the BIA has adequate mechanisms to address and remedy, the petitioner must raise the issue in a motion to reopen prior to resorting to review by the courts.” Here, Petitioner failed to meet these requirements. He never presented his ultra vires claim to the BIA, even though he could have raised it in his motion to reconsider. Moreover, Petitioner seeks the exact relief the BIA could’ve awarded him on reconsideration—namely, a new decision by a board member serving an unexpired term.
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