F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
April 3, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
M IGU EL AN GEL TO RRES DE LA
CRU Z,
Petitioner-A ppellant,
v. No. 06-9515
DOUGLAS M AURER, District
Director, United States Immigration
and Naturalization Service, Denver,
Colorado, * and ALBERTO R.
GONZALES, Attorney General,
Respondents-Appellees.
PETIT ION FOR R EV IEW OF AN ORDER OF THE BUREAU
OF IM M IGR ATION APPEALS
(D .C . N O. 00-C V-1658-JLK )
(Agency N o. A43 780 280)
Submitted on the Briefs: **
Jim Salvator, Lafayette, Colorado, for Petitioner-A ppellant.
*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Douglas
M aurer replaces Joseph Greene as a respondent in this case.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
W illiam J. Leone, United States Attorney, and M ark S. Pestal, Assistant United
States Attorney, for Respondents-Appellees.
Before TA CH A, Chief Judge, HA RTZ, and TYM KOVICH, Circuit Judges.
T YM K O VIC H, Circuit Judge.
M iguel Angel Torres de la Cruz (Torres), a native and citizen of M exico,
was admitted into the United States as a lawful permanent resident on October 30,
1992. After an August 6, 1999 state court conviction in Utah for possession of a
controlled substance (cocaine), the then-Immigration and Naturalization Service
(INS) 1 initiated removal proceedings against him in December 1999. He was
found to have committed a removable offense and ordered removed.
In this appeal, Torres asserts four claims: (1) his state conviction is not a
controlled substance offense under the recent holding in Salinas v. United States,
547 U.S. 188 (2006), and thus does not constitute a removable offense; (2) his
state misdemeanor conviction for possession cannot constitute an aggravated
felony within the meaning of the Immigration and Naturalization Act (INA); (3)
the immigration court’s interpretation of 8 U.S.C. § 1229b(d)(1), the so-called
“stop-time” rule, violates his right to due process and equal protection; and (4) his
1
The enforcement functions of the INS were reconstituted as U.S.
Immigration and Customs Enforcement during the pendency of this case. For the
sake of clarity, we will continue to refer to the agency as the IN S throughout this
opinion.
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removal proceedings violate the Vienna Convention and an INS regulation on
consular notification rights.
Lacking jurisdiction over Torres’s first tw o claims, we DISM ISS them.
W hile retaining jurisdiction over his remaining two claims, we find they lack
merit, DENY the petition for review , and AFFIRM the order of removal.
I. Background and Procedural H istory
This case began in December of 1999 when the INS charged that Torres
was removable for committing an “aggravated felony” under 8 U.S.C.
§ 1227(a)(2)(A)(iii), and a “controlled substance” violation under 8 U.S.C.
§ 1227(a)(2)(B)(i), based on his Utah state guilty plea to simple possession of
cocaine in August of 1999. During his removal hearings, the INS dropped the
“aggravated felony” count as a basis for removal. On February 7, 2000, an
immigration judge (IJ) found that Torres had a “controlled substance” conviction
and was removable under § 1227(a)(2)(B)(i), determined that he was ineligible for
cancellation of removal, and ordered him removed to M exico. On appeal, the
Board of Immigration Appeals (BIA) considered Torres’s challenges to the IJ
decision and found them to be without merit in an order dated August 16, 2000.
On September 1, 2000, a U tah sentencing court modified Torres’s
conviction from a felony to a misdemeanor. Based on the state court’s action, on
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September 29, 2000, 2 Torres filed a motion to reopen the proceedings with the
BIA to challenge his removability. The BIA denied the motion as w ithout merit
on February 8, 2001.
Because he was in custody, Torres filed a habeas action in U.S. District
Court for the District of Colorado on August 21, 2000. W hile the habeas petition
was initiated prior to the BIA’s denial of his motion to reopen, Torres later
amended his petition to include the arguments presented before the BIA in his
motion to reopen. The case was later held in abeyance pending the Supreme
Court’s decision in INS v. St. Cyr, 533 U.S. 289 (2001).
In January 2006, the case was transferred to this court and converted to a
petition for review pursuant to the REAL ID Act of 2005, Pub. L. No. 109–13,
Div. B, § 106(a), (c), 119 Stat. 231, 310 (2005).
II. Jurisdiction
B efore addressing M r. Torres’s claims, our threshold inquiry is whether w e
have jurisdiction to consider this appeal. Congress has provided an avenue for
direct review of final orders of removal through petitions for review in courts of
appeals. 8 U.S.C. § 1252(a)(1); Berrum-Garcia v. Com fort, 390 F.3d 1158, 1162
(10th Cir. 2004). Indeed, “petitions for review filed with the court of appeals are
the sole and exclusive means of review of most administrative orders of removal.”
2
Although Torres’s motion was dated September 2, 2000, it was time-
stamped by the BIA on September 29, 2000.
-4-
Ferry v. Gonzales, 457 F.3d 1117, 1131 (10th Cir. 2006) (internal quotation
omitted).
Although Torres failed to file a petition for review within thirty days of
either of the BIA’s final orders of removal as required by 8 U.S.C. § 1252(b)(1),
the REAL ID Act cures this defect. Torres’s appeal is premised on his habeas
petition filed in the district court under 28 U.S.C. § 2241. The REAL ID Act
directs that habeas petitions (1) challenging a final order of removal, and (2)
w hich w ere pending in the district courts before the effective date of the REAL
ID Act, like Torres’s, are to be transferred to the appropriate court of appeals as a
petition for review under §1252 notwithstanding the failure to comply with
§ 1252(b)(1)’s thirty-day requirement. Pub. L. No. 109–13, Div. B at § 106(c),
119 Stat. at 310 (“The court of appeals shall treat the transferred case as if it had
been filed pursuant to a petition for review under such section 242, except that
subsection (b)(1) [the thirty-day deadline] of such section shall not apply.”); see
Schmitt v. M aurer, 451 F.3d 1092, 1095 (10th Cir. 2006).
Here, the BIA ordered Torres removed on A ugust 16, 2000. Torres then
timely filed his habeas petition challenging that final order of removal in the
district court on August 21, 2000. The district court later granted his motion to
amend the habeas petition to include arguments considered by the BIA in its
denial of the motion to reopen on November 14, 2000. These arguments therefore
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fall within the language of the transfer provision. 3 The habeas petition is
therefore considered a petition for review over both BIA decisions and our
jurisdiction is found under 8 U.S.C. § 1252. See Schmitt, 451 F.3d 1092,
1094–95.
Notwithstanding the foregoing, we only retain jurisdiction over claims
challenging a final order of removal “if the alien has exhausted all administrative
remedies available . . . as of right.” 8 U.S.C. § 1252(d)(1). W e have recognized
that “[n]eglecting to take an appeal to the BIA constitutes a failure to exhaust
administrative remedies as to any issue that could have been raised, negating the
jurisdiction necessary for subsequent judicial review.” Soberanes v. Com fort, 388
F.3d 1305, 1308–09 (10th Cir. 2004). Accordingly, we have jurisdiction only
over those claims that were presented to the BIA and were properly appealed to
this court through Torres’s habeas petition.
Under this framework, we are deprived of jurisdiction over Torres’s first
tw o claims.
A. Controlled Substance O ffense
Torres’s first claim challenges whether his drug possession conviction is a
“removable offense” after Salinas, 547 U.S. 188 (2006). Salinas holds that a
3
The district court initially granted Torres’s amendment before the BIA
issued its final order. Because the BIA failed to issue a timely final order, once
the final order was issued, the district court considered it incorporated into the
habeas petition.
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conviction for simple possession of a controlled substance is not a “controlled
substance offense” for purposes of the United States Sentencing Guidelines
because the Guidelines expressly define the offense to require a trafficking
elem ent. 547 U.S. at 188. Considering that Salinas was decided more than five
years after his agency proceedings were completed, Torres obviously could not
have invoked Salinas in the first instance before the BIA .
In his motion to reopen, however, Torres generally charged that the
reclassification of his state conviction as a misdemeanor renders the offense
incapable of serving as a basis of removal under 8 U.S.C § 1227(a)(2)(B)(i). H e
argued that the offense fell under the “functional equivalent” of the Federal First
Offender Act 4 and that the “offense is not a deportable offense.” A.R. at 15.
Nevertheless, where a specific issue was not addressed in administrative
proceedings in the manner it is now addressed before us, general statements in the
notice of appeal to the BIA are insufficient to constitute exhaustion of
administrative remedies. See Ramani v. Ashcroft, 378 F.3d 554, 560 (6th Cir.
2004). Accordingly, Torres’s broad assertions in his motion to reopen are not
sufficient to exhaust the issue. Torres did not ask the BIA to consider, nor did the
BIA analyze, whether the conviction for a “controlled substance offense” in the
4
Torres does not revive this claim in his briefs on appeal. Accordingly,
we find this argument abandoned and make no pronouncements as to the BIA’s
decision.
-7-
removal context is analogous to the Sentencing Guidelines’ definition requiring a
trafficking element.
Torres’s failure to exhaust this issue precludes our jurisdiction and we
dismiss the claim without reaching the merits.
B. Aggravated Felony
Torres’s second argument is that he was not convicted of an “aggravated
felony,” thereby preserving his eligibility for cancellation of removal under
8 U.S.C. § 1229b(a). The record makes clear that this issue was never presented
to the BIA , which divests us of jurisdiction.
C. T orres’s Other C laims
Since they were presented to the BIA, Torres’s final two claims survive the
procedural bar of exhaustion. Nevertheless, they must still withstand other limits
to our subject matter jurisdiction. Congress has eliminated judicial review of (1)
BIA discretionary decisions, 8 U.S.C. § 1252(a)(2)(B), as well as (2) any “final
order of removal against an alien who is removable by reason of having
committed” certain offenses, among them controlled substance offenses, 8 U.S.C.
§ 1252(a)(2)(C).
These broad jurisdiction-stripping provisions are subject to tw o exceptions.
First, as an Article III court, we have inherent jurisdiction “to determine whether
the jurisdictional bar applies. W e may therefore decide whether the petitioner is
(i) an alien (ii) deportable (iii) by reason of a criminal offense listed in the
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statute.” Latu v. Ashcroft, 375 F.3d 1012, 1017 (10th Cir. 2004) (internal
citations omitted). Accordingly, we have jurisdiction to review Torres’s
arguments challenging the BIA’s order of removal on the basis that his plea and
conviction do not constitute an offense warranting removal. See Ballesteros v.
Ashcroft, 452 F.3d 1153, 1156–1157 (10th Cir. 2006).
The second exception is statutory, coming from the REAL ID Act.
Congress added a new section making clear that “[n]othing in [1252(a)(2)(B) or
(C)], or in any other provision of this chapter (other than this section) which
limits or eliminates judicial review, shall be construed as precluding review of
constitutional claims or questions of law raised upon a petition for review.” 8
U.S.C. § 1252(a)(2)(D). Consequently, we are not barred by § 1252(a)(2)(B) or
(C) from reviewing Torres’s claims that raise either constitutional or legal
questions. See Ballesteros, 452 F.3d at 1157.
W e find Torres’s final two claims sufficiently raise legal or constitutional
questions to confer jurisdiction to consider their merits. Torres’s due process and
equal protection challenges to the “stop-time” rule patently present a
constitutional question. His final argument based on consular notification rights
also raises a question of law under § 1252(a)(2)(D) because it involves legal
issues in interpreting a treaty. 5
5
W e have held that § 1252(a)(2)(D)’s “question of law” refers to a
“narrow category of issues regarding statutory construction.” Diallo v. Gonzales,
(continued...)
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III. Analysis
W e review the legal and constitutional questions de novo. Ferry v.
Gonzales, 457 F.3d 1117, 1226 (10th Cir. 2006). W e now address Torres’s final
tw o claims.
A. The Stop-Time Rule and C ancellation of Removal
5
(...continued)
447 F.3d 1274, 1282 (10th Cir. 2006). “Questions of law” pertain to “those issues
that were historically reviewable on habeas-constitutional and statutory-
construction questions, not discretionary or factual questions.” Id. (citing H.R.
Rep. No. 109-72 at 175 (2005), as reprinted in 2005 U.S.C.C.A.N. 240). Thus,
the BIA’s determination of a statutory time-bar sufficiently raises a question of
law to confer jurisdiction. Id. Here, Torres argues that he was entitled to
consular notification under the Vienna Convention and an INS regulation and that
a BIA procedural bar may not apply to those rights.
In O Centro Espirita Beneficente U niao do Vegetal v. Ashcroft, we noted
that “an Act of Congress . . . is on a full parity with a treaty.” 389 F.3d 973, 1009
n.5 (10th Cir. 2004). The converse is also true: Congress’s treaty power is given
similar w eight to its legislative power. Cf. Valentine v. United States, 299 U.S. 5,
10 (1936) (“The Constitution declares a treaty to be the law of the land. It is
consequently . . . to be regarded in courts of justice as equivalent to an act of the
legislature, whenever it operates of itself without the aid of any legislative
provision.” (internal quotes omitted)). Thus, the interpretation of treaties, such as
the Vienna Convention, is a “question of law” under § 1252. See, e.g., O Centro,
389 F.3d at 988 (M urphy, J., concurring in part and dissenting in part) (“First and
foremost, the interpretation of [a] Convention is a question of law .”); see also
Quang Ly Tran v. Gonzales, 447 F.3d 937, 943 (6th Cir. 2006) (reviewing legal
issues involving the U.N. Convention Against Torture (CAT) under the
§ 1252(a)(2)(D ) grant); Akram Qassim Hamid v. Gonzales, 417 F.3d 642, 647 (7th
Cir. 2005) (courts of appeals may review constitutional and legal questions
“relevant to a petitioner’s claim for relief under CAT”); Kamara v. Att’y Gen. of
the U nited States, 420 F.3d 202, 211 (3d Cir. 2005) (finding jurisdiction over
“pure questions of law ” and the “issues of application of law to fact” in a CAT
claim).
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Torres launches a constitutional attack on the denial of his eligibility for
cancellation of removal under 8 U.S.C. § 1229b(a). Under § 1229b(a),
cancellation of removal is a discretionary form of relief that allows the Attorney
General to cancel the removal order of a removable alien. To qualify for
cancellation of removal, an alien must satisfy three elements: (1) the alien must
have been “lawfully admitted for permanent residence for not less than five
years,” 8 U.S.C. § 1229b(a)(1); (2) the alien must have “resided in the United
States continuously for 7 years after having been admitted in any status,” id.
§ 1229b(a)(2); and (3) the alien may not have been “convicted of any aggravated
felony,” id. § 1229b(a)(3).
Torres gained lawful permanent residence on October 30, 1992, and so
putatively satisfies the five-year requirement of § 1229b(a)(1). Nevertheless,
under the so-called “stop-time” rule, the IJ found Torres ineligible for
cancellation of removal under § 1229b(a)(2). The stop-time rule, as provided for
in 8 U.S.C. § 1229b(d)(1), is a methodology to calculate an alien’s continuous
physical presence or residence in the United States and thus determines whether
an alien has been here long enough to be eligible for cancellation of removal
under § 1229b(a)(2).
Under the rule, time will stop accruing when the alien was (1) served with a
notice to appear, or (2) w hen the alien committed certain removable offenses. Id.
§ 1229b(d)(1). Torres arrived in the United States on October 30, 1992 and his
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removable offense occurred on August 6, 1999. The IJ held that the clock
stopped ticking “about a month and [a] half, two months short” of the seven-year
milestone of § 1229b(a)(2) and so denied him eligibility for cancellation. A.R. at
93.
Torres argues that the stop-time rule as applied to him lacks a rational basis
and thus violates constitutional due process and equal protection principles. W e
find Torres’s constitutional arguments unpersuasive because he has no protected
liberty interest in the cancellation of his removal order and the challenged
statutory provisions easily withstand rational basis review.
First, Torres alleges that his due process rights were violated because no
rational basis exists for the stop-time rule for § 1229b(a)(2)’s “continuous
presence” requirement when no such rule exists for § 1229b(a)(1)’s five-year
requirement. The stop-time rule does not extend to § 1229b(a)(1) because that
provision’s language refers only to law ful admission as a permanent resident,
while the stop-time rule applies only to “continuous residence or continuous
physical presence.” See 8 U.S.C. § 1229b(a)(1), (d)(1); see also Sinotes-Cruz v.
Gonzales, 468 F.3d 1190, 1197 (9th Cir. 2006). Although unclear from the briefs,
we construe this argument to encompass both substantive and procedural due
process claims. Second, Torres contends that an equal protection violation occurs
when § 1229b(a)(2)’s application to aliens of “any status” impermissibly creates
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disparate treatment of “first-time violation” and “repeat-law-breaking” aliens.
W e disagree with both contentions.
1. Procedural Due Process
Before passage of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), suspension of deportation, as a purely
discretionary form of relief, did not give rise to a liberty or property interest
protected by the due process clause. United States v. Aguirre-Tello, 353 F.3d
1199, 1204–05 (10th Cir. 2004) (examining the case law in several circuits),
vacated, United States v. Aguirre-Tello, 353 F.3d 1199, 1209 (10th Cir. 2004) (en
banc). Nevertheless, “when facing deportation . . . aliens are entitled to
procedural due process, which provides an opportunity to be heard at a
meaningful time and in a meaningful manner.” Id. at 1204.
Torres’s claims are governed by the IIRIRA; nevertheless, the same point
of law applies. W hile the cancellation of removal is not a liberty or property
interest, aliens challenging eligibility for the cancellation of removal are entitled
to an “opportunity to be heard at a meaningful time and in a meaningful manner.”
Id. Torres received the process that was due, as evidenced by the IJ’s colloquy
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with Torres’s counsel regarding the cancellation of removal, 6 and he was entitled
to no more.
2. Equal Protection & Substantive Due Process
In disposing of Torres’s equal protection and substantive due process 7
claims, we hold that the stop-time rule is rationally grounded. See Appiah v. INS,
202 F.3d 704, 709–10 (4th Cir. 2000) (applying rational basis review to
substantive due process and equal protection challenges to stop-time rule). W ith
the stop-time rule, “Congress intended to prevent aliens from continuing to
6
The transcript for Torres’s removal proceeding reveals that the IJ
permitted Torres’s counsel to present arguments in favor of eligibility for
cancellation of removal.
THE COURT: The Court set the matter down this afternoon for
argument on whether the respondent qualified for cancellation of
removal under 240A(a). M r. Salvator [Torres’s counsel], is there
anything you want to state, sir?
TORRES COUNSEL: Your honor, I’ve looked at the brief that the
Service has submitted and I understand the argument that appears
under the Service’s interpretation of the law M r. Torres is short
about a month in terms of qualifying based on continuous presence
and our argument to submit to the court is simply that there’s no
rational basis for distinguishing or cutting rather having a stop time
provision for continuous presence and not having a stop time
provision for lawful permanent residents.
THE COURT: Okay.
A.R. at 92.
7
Assuming arguendo that this claim requires any substantive due process
review.
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accumulate time toward the continuous residency requirement after INS had
issued an order to show cause to an alien.” Sibanda v. INS, 282 F.3d 1330, 1335
(10th Cir. 2002). By mandating the stop-time rule, Congress also removed an
alien’s incentive for prolonging removal hearings in order to become eligible for
cancellation of removal. Appiah, 202 F.3d at 710. These purposes are valid
governmental objectives.
Torres argues that the statutory scheme is irrational because the stop-time
rule applies only to § 1229b(a)(2) (seven years of continuous residence) and not
to § 1229b(a)(1) (five years from law ful admission) and so the incentive to
prolong removal proceedings persists. W e do not follow this logic. An alien
must satisfy all three requirements of § 1229b(a) to be eligible for cancellation.
If § 1229b(a)(2) cannot be satisfied, then the alien is ineligible for cancellation of
removal notwithstanding the alien’s compliance with § 1229b(a)’s other
provisions. If an alien is short of the seven years required under § 1229b(a)(2),
he is ineligible for cancellation of removal and so it does not matter that the
alien’s time counted toward permanent residency still accrues under
§ 1229b(a)(1). Accordingly, prolonging the removal proceedings will be
unavailing.
Torres also complains that the stop-time rule lacks a rational basis because
it (1) denies cancellation to lawfully admitted aliens who have not been
continuously present in the country for seven years, (2) while granting eligibility
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for aliens who may have been in the country unlawfully (and subsequently gained
legal permanent residence) but have nonetheless been in the country for the
requisite seven years.
W e disagree that these classifications fail rational basis review. Section
1229b(a)(1) provides that aliens eligible for cancellation must have been law fully
admitted for permanent residence for at least five years. Congress may have
determined that after five years of lawful residence and seven years of physical
presence in the country, aliens should be eligible for cancellation of removal
regardless of their prior unlawful presence in the country. W hile the policy
objective may not be perfectly advanced by these provisions, only a reasonable
relationship to the objective and the chosen means need be shown.
The Supreme Court has repeatedly emphasized that over no conceivable
subject is the legislative power of Congress more complete than it is
over the admission of aliens, and it has long recognized the power to
expel or exclude aliens as a fundamental sovereign attribute exercised
by the Government’s political departments [is] largely immune from
judicial control. Thus, in determining whether a rational basis exists for
making distinctions between classes of aliens, we are especially
deferential.
Latu, 375 F.3d at 1020 (internal quotations omitted). If Congress chooses to treat
aliens who were formerly present illegally but legalized their status more
favorably than those who commit drug crimes, it is not our role to second-guess
the governmental objective.
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Since we find no constitutional infirmity with § 1229b(a) and the stop-time
rule, we need not address Torres’s arguments about alternate interpretations of the
stop-time rule.
B. Consular Notification
Torres’s final argument concerns the INS’s failure to apprise him that he
was entitled to communicate with M exican consular or diplomatic officers under
the Vienna Convention and immigration regulations. Specifically, he contends
that the BIA’s failure violates Article 36(1)(b) of the Vienna Convention on
Consular Relations 8 and 8 C.F.R. § 236.1(e). 9 The BIA held that Torres’s
argument was w aived because he failed to assert the issue before the IJ, and, in
any event, Torres could not show that the violation resulted in any prejudice.
A.R. at 46.
8
Article 36(1)(b) holds,
W ith a view to facilitating the exercise of consular functions relating to
nationals of the sending State: if he so requests, the competent
authorities of the receiving State shall, without delay, inform the
consular post of the sending State if, within its consular district, a
national of that State is arrested or committed to prison or to custody
pending trial or is detained in any other manner.
21 U.S.T. 77, 100-101 (Apr. 24, 1963). The United States is a signatory to the
Vienna Convention, which was ratified by the United States on October 22, 1969.
See Cong. Rec. 30997 (1969).
9
The regulation states, “Privilege of communication. Every detained alien
shall be notified that he or she may communicate w ith the consular or diplomatic
officers of the country of his or her nationality in the United States.” 8 C.F.R.
§ 236.1(e).
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1. The BIA’s Procedural Bar
The BIA determined that Torres’s consular notification argument was not
presented to the IJ and thus the argument was waived. “On a petition for review
to this court[,] we will not permit the petitioner to circumvent proper procedural
requirements of the BIA by presenting contentions that were procedurally barred
by the Board.” Galvez Pineda v. Gonzales, 427 F.3d 833, 837 (10th Cir. 2005).
In this petition, Torres claims that a “review at the BIA is de novo, and the B IA
cited no case law or regulation in support of the procedural default it applied for
the first time in the Torres case.” Aplt. Br. at 54–55. W e find this contention
unpersuasive.
The BIA has held that matters not raised before an IJ are not preserved on
appeal. See In re R- S- H -, 23 I. & N. Dec. 629, 638 (B.I.A. 2003) (“The record
does not reflect that the respondent raised any objections to the attorneys’
presence at the hearing. Therefore, the respondent waived his opportunity to
pursue this issue on appeal.”); In re Fidel Jim enez-Santillano, 21 I. & N. Dec.
567, 570 n.2 (B.I.A. 1996) (“The record reflects, however, that this issue was
neither raised before, nor ruled upon by the Immigration Judge. Therefore, we
will not decide the issue, for it is not properly before us.”); M atter of Edwards, 20
I. & N. Dec. 191, 196 n.4 (B.I.A. 1990) (“[B]ecause the respondent did not object
to the entry of this document into evidence at the hearing below, it is not
appropriate for him to object on appeal.”); M atter of Garcia-Reyes, 19 I. & N.
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Dec. 830, 832 (B.I.A. 1988) (“It is clear that objections themselves should be
made on the record, or such objections will not be preserved for appeal.”).
The BIA’s waiver rule, as with most appellate bodies, is wholly consistent
with its rules of practice. See 8 C.F.R. § 1003.1(d) (“The Board shall function as
an appellate body charged with the review of those administrative adjudications
under the Act.”). As we have noted in analyzing the waiver doctrine in a
different context:
In order to preserve the integrity of the appellate structure, we should
not be considered a “second-shot” forum, a forum where secondary,
back-up theories may be mounted for the first time. Parties must be
encouraged to give it everything they’ve got at the trial level. Thus, an
issue must be presented to, considered and decided by the trial court
before it can be raised on appeal.
Tele-Communications, Inc. v. Commissioner, 104 F.3d 1229, 1233 (10th Cir.
1997) (internal quotations and citations omitted).
These reasons apply with equal force to the BIA. Like circuit courts, the
BIA’s ability to engage in fact-finding is limited, 8 CF.R. § 1003(d)(3) (“The
Board will not engage in de novo review of findings of fact determined by an
immigration judge.”), and the failure to raise an issue before the IJ properly
waives the argument on appeal to the BIA. W e thus agree that the doctrine of
waiver can appropriately be applied by the BIA under its rules and precedent. 10
10
The G overnment suggests that Torres also failed to exhaust
administrative remedies under 8 U.S.C. § 1252(d)(1). Aple. Br. at 23–24. The
statutory exhaustion requirement is different than the BIA’s procedural bar. W e
(continued...)
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Since Torres failed to raise the regulatory right of consular notification
before the IJ, the BIA properly concluded the issue was procedurally barred. For
the same reasons as the BIA , we decline to reach the issue.
2. Effect of the Vienna Convention
W hether Torres has a claim directly under Article 36(1)(b) of the Vienna
Convention is a different matter. Torres invites us to recognize an enforceable
right under the Vienna Convention that cannot be procedurally barred based on a
pair of International Court of Justice (ICJ) rulings. See Case Concerning Avena
and other M exican Nationals (M ex. v. U.S.), 2004 I. C. J. No. 128 (Judgment of
M ar. 31) (precluding the application of American procedural default rules to
Article 36 claims); LaGrand Case (F.R.G. v. U.S.), 2001 I. C. J. 466 (Judgment of
June 27) (same). We decline the invitation. Instead, we choose to follow, as w e
must, the dictates of the United States Supreme Court. See U.S. Const. Art III
§ 1.
Only last year, the Supreme Court noted that the ICJ’s pronouncements are
not “conclusive on our courts,” but are only entitled to “respectful consideration.”
Sanchez-Llamas v. Oregon, 126 S. Ct. 2669, 2684–85 (2006). The Court then
reaffirmed its previous holding in Breard v. Greene, 523 U.S. 371, 375 (1998)
(dealing with state procedural bars), that, even if the Vienna Convention creates
10
(...continued)
need not reach the exhaustion issue since we find Torres’s claim was
“procedurally barred by the Board.” Galvez Pineda, 427 F.3d at 837.
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private enforceable rights, 11 such “claims under Article 36 of the Vienna
Convention may be subjected to the same procedural default rules that apply
generally to other federal-law claims.” Id. The Court reasoned that procedural
default rules are an important and indispensable part of our “adversary system,
which relies chiefly on the parties to raise significant issues and present them to
the courts in the appropriate manner at the appropriate time for adjudication.” Id.
at 2685.
Accordingly, regardless of whether Article 36(1)(b) gives Torres an
enforceable right of consular notification, we hold that statutory and regulatory
procedural bars apply to Torres’s claim and the BIA’s finding that he defaulted on
his claim is conclusive.
W e acknowledge that the Supreme Court’s ruling in Sanchez-Llam as dealt
specifically with state procedural default rules in the criminal setting. Yet, we do
not see how the Court’s rationale would dictate a different conclusion in federal
removal proceedings. After all, removal proceedings before an IJ and the B IA
“generally are adversarial and employ many of the same procedures used in
Article III courts.” Frango v. Gonzales, 437 F.3d 726, 728 (8th Cir. 2006); see
11
And we have serious doubts that it does. See, e.g., Cardenas v. Dretke,
405 F.3d 244 (5th Cir. 2005) (the Vienna Convention does not confer individually
enforceable private rights); United States v. Emuegbunam, 268 F.3d 377, 394 (6th
Cir. 2001) (same); State v. M artinez-Rodriguez, 33 P.3d 267 (N.M . 2001) (same);
Oregon v. Sanchez-Llamas, 108 P.3d 573 (Ore. 2005) (same); Shackleford v.
Commonwealth, 547 S.E.2d 899 (V a. 2001) (same).
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also Detroit Free Press v. Ashcroft, 303 F.3d 681, 699 (6th Cir. 2002) (“It is clear
that removal proceedings are decidedly adversarial.”); North Jersey Media Group,
Inc. v. Ashcroft, 308 F.3d 198, 223–24 (3d Cir. 2002) (Scirica, J., dissenting);
Etchu-Njang v. Gonzales, 403 F.3d 577, 583 (8th Cir. 2005). In this case, Torres
was subject to an adversarial removal proceeding and so BIA procedural bars
rightfully applied.
In fact, the nature of removal proceedings militates more strongly for the
application of procedural bars than in the criminal context. After all, a removal
proceeding is a civil proceeding, not a criminal one, and the demands of
constitutional or legal safeguards are accordingly less strict. Cf. United States v.
Valdez, 917 F.2d 466, 469 (10th Cir. 1990).
W e close with our oft-noted admonition, “it has long [been] recognized
[that] the power to expel or exclude aliens as a fundamental sovereign attribute
exercised by the Government’s political departments [is] largely immune from
judicial control.” Latu, 375 F.3d at 1020. If the political branches do not wish to
exclude Article 36(1)(b) claims from agency procedural bars, it is not for us to
say differently.
In sum, we find no error in the BIA’s conclusion that Torres’s consular
notification claim was waived.
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IV. Conclusion
For the foregoing reasons, we DISM ISS Torres’s appeal in part for lack of
jurisdiction and we DENY in part for lack of meritorious claims. The BIA’s
order of removal is A FFIR ME D.
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