Sola v. Holder, Jr., No. 11-71917 (9th Cir. 2013)
Annotate this CasePetitioner, a native and citizen of Mexico, petitioned for review of the BIA's order affirming an IJ's decision finding her removable, denying her temporary protective status (TPS) relief, and granting her voluntary departure in lieu of removal. Petitioner argued that she was denied due process when the government placed her in removal proceedings without her husband but she did not raise this argument before the IJ or the BIA. The court concluded that petitioner's claim did not fall within the exception to the exhaustion requirement because the IJ or BIA could have addressed petitioner's claim if she had raised it. The court did not have jurisdiction to consider the issue because she failed to exhaust her claim. Accordingly, the court dismissed the petition for lack of subject matter jurisdiction.
Court Description: Immigration. 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.
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