[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-13379 FEB 15, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________
Agency No. A028-590-509
CESARIO DEJESUS REYES-MORALES,
a.k.a. Sesario De Jesus Reyes Muralles,
a.k.a. Cesar Anibal Reyes Muralles,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(February 15, 2011)
Before HULL, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Cesario Anibal Reyes-Muralles,1 a Guatemalan national, petitions for
review of the Board of Immigration Appeals’s (“BIA”) order dismissing his appeal
from an immigration judge’s (“IJ”) denial of his application for special rule
cancellation of removal under § 203 of the Nicaraguan and Central American
Relief Act of 1997 (“NACARA”).2 Pub. L. No. 105-100, 111 Stat. 2160, 2196–99
(1997). We have jurisdiction under 8 U.S.C. § 1252.3
To establish his eligibility for special rule cancellation of removal under the
NACARA, Reyes-Muralles bears the burden of showing, inter alia, that he has
been continually present in the United States for the seven years preceding the
disposition of his application—in this case, 2002–09.4 See 8 C.F.R. §
1
This case is docketed under the name “Cesario DeJesus Reyes-Morales,” but the
petitioner has clarified that his name is “Cesario Anibal Reyes-Muralles.”
2
Section 203 of the NACARA allows nationals of certain countries to apply for special
rule cancellation of removal, provided they filed asylum applications with the INS on or before
April 1, 1990 and meet certain other conditions.
3
Notwithstanding § 1252’s jurisdiction-stripping provision precluding judicial review of
discretionary BIA determinations, § 1252(a)(2)(B), we have jurisdiction to review the Board’s
non-discretionary determination here-at-issue: whether Reyes-Muralles has satisfied the
NACARA’s continuous-presence requirement. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1298
(11th Cir. 2001) (evaluating the statutory predecessor of the requirement at issue and determining
it was not a “discretionary decision” within the scope of the jurisdiction-stripping provision);
Gonzalez-Oropeza v. U.S. Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003) (per curiam)
(applying Al Najjar to the current statute).
4
Notwithstanding 8 U.S.C. § 1229b(d)(1)’s stop-time provision, the BIA has interpreted
the continuous-presence requirement to apply to the seven years preceding the final
administrative disposition of an application for special rule cancellation of removal. See In re
Garcia, 24 I. & N. Dec. 179, 183 (BIA 2007). We are bound to follow agencies’ reasonable
2
1240.66(b)(2). He must do so by a preponderance of the evidence. 8 C.F.R. §
1240.64(a). The IJ determined Reyes-Muralles failed to meet this burden, and the
BIA agreed, dismissing his administrative appeal. Reyes-Muralles claims this was
error.
We review the BIA’s continuous-presence determination under the
substantial-evidence test, evaluating whether the record as a whole supports the
decision with “reasonable, substantial, and probative evidence.”5 Al Najjar v.
Ashcroft, 257 F.3d 1262, 1283–84 (11th Cir. 2001). Under this test, we view “the
record evidence in the light most favorable to the agency’s decision,” and we will
only reverse the findings of the agency when the record evidence compels that
result. Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc). In
this case, there is no such compulsion.
The BIA’s conclusion is supported by substantial evidence. Reyes-
Muralles’s hearing testimony contained several inconsistencies, leading the IJ to
find that he was not “fully credible.” Furthermore, despite his claim that he has
resided in the United States for decades, Reyes-Muralles offered scant evidence to
interpretations of the statutes they are entrusted to administer. Chevron U.S.A., Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837, 843–44, 104 S. Ct. 2778 (1984); Lin v. U.S. Atty. Gen.,
555 F.3d 1310, 1316 n.4 (11th Cir. 2009).
5
We review the BIA’s decision as the final judgment, unless the BIA expressly adopted
the IJ’s decision. Ruiz v. Gonzales, 479 F.3d 762, 765 (11th Cir. 2007).
3
corroborate his continuous presence in the country during the time period in
question. The BIA specifically found that he failed to offer “any contemporaneous
documentation” from the years in question. Contrary to that finding, however, the
record shows Reyes-Muralles did offer some documentation actually generated
during this time period, including a Florida driver’s license issued in 2004 and
three “1099” tax forms issued from his employer in the years 2005, 2006, and
2008. Nevertheless, we cannot say that, when coupled with the IJ’s credibility
determination, this evidence compels the conclusion that Reyes-Muralles
demonstrated his continuous presence in the United States by a preponderance of
the evidence. Consequently, we must deny his petition.
Reyes-Muralles also asserts that the administrative proceedings were
procedurally deficient, claiming the IJ enforced a clear-and-convincing evidentiary
burden against him, instead of the appropriate preponderance standard. Because
Reyes-Muralles failed to exhaust his administrative remedies with respect to these
claims, we are without jurisdiction to entertain them. 8 U.S.C. § 1252(d). This
lack of jurisdiction extends to Reyes-Muralles’s procedural-due-process claim.
See Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1251 (11th Cir. 2006)
(per curiam). Accordingly, his claims of procedural defect are dismissed.
4
For the foregoing reasons, Reyes-Muralles’s petition for review of the
BIA’s final order is dismissed in part and denied in part.
DISMISSED IN PART, DENIED IN PART.
5