JORGE LOPEZ HERNANDEZ V. MERRICK GARLAND, No. 20-71956 (9th Cir. 2023)
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Petitioner, a native and citizen of Mexico, petitioned for review of a decision of the Board of Immigration Appeals. Although the Board entertained the government’s challenge to a portion of the immigration judge’s decision in Petitioner’s case, it declined to consider Petitioner’s challenges to that decision because Petitioner had not filed a cross-appeal. Petitioner argued that the Board erred when it concluded that he was required to file a separate cross-appeal to challenge the immigration judge’s alternative order on the merits of his claims.
The Ninth Circuit affirmed. The panel observed that section 1003.3 does not expressly address cross-appeals. However, the panel wrote that the cross-appeal rule is an “unwritten but longstanding rule” under which “an appellate court may not alter a judgment to benefit a nonappealing party.” The panel explained that the Supreme Court has described this rule as “firmly entrenched,” and it has noted that “in more than two centuries of repeatedly endorsing the cross-appeal requirement, not a single one of our holdings has ever recognized an exception to the rule.” The panel noted that it was not suggesting that the Board was required to follow the traditional rule governing cross-appeals. Rather, the Board has authority to prescribe its own rules of procedure so long as the Board acts within the broad limits imposed by the Due Process Clause. The panel concluded that it lacked jurisdiction to consider Petitioner’s arguments for a waiver of the cross-appeal rule because he failed to exhaust that claim before the Board.
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