Case: 10-60222 Document: 00511434943 Page: 1 Date Filed: 04/05/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 5, 2011
No. 10-60222
Summary Calendar Lyle W. Cayce
Clerk
LEONARDO ZUNIGA-CAPILLA,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A091 192 634
Before JONES, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Leonardo Zuniga-Capilla, a native and citizen of Mexico, petitions this
court for review of a Board of Immigration Appeals (BIA) order dismissing an
appeal from an immigration judge’s (IJ’s) decision denying a request for a waiver
of inadmissibility under section 212 of the Immigration and Nationality Act,
8 U.S.C. § 1182(c). Zuniga-Capilla argues that the standard of review that the
IJ and the BIA used to determine his eligibility for § 212(c) relief was an
improper interpretation of § 212(c) that was not entitled to deference under
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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No. 10-60222
Chevron USA, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). He
asserts that the proper standard of review is clearly delineated in § 212(c) and
that the standard used by the IJ and the BIA, i.e, the standard set forth in
Matter of Marin, 16 I&N Dec. 581, 583-85 (BIA 1978), is an ultra vires
amendment to the statute. He alternatively argues that, to the extent § 212(c)
is ambiguous, the standard used by the IJ and the BIA is not a permissible
construction of the statute.
An alien must exhaust all administrative remedies that are available as
of right before this court may review a final order. See Omari v. Holder,
562 F.3d 314, 318 (5th Cir. 2009); 8 U.S.C. § 1252(a)(1), (d). “Petitioners fail to
exhaust their administrative remedies as to an issue if they do not first raise the
issue before the BIA, either on direct appeal or in a motion to reopen.” See
Omari, 562 F.3d at 318; Wang v. Ashcroft, 260 F.3d 448, 452-53 (5th Cir. 2001).
“This exhaustion requirement applies to all issues for which an administrative
remedy is available to a petitioner as of right.” Omari, 562 F.3d at 318 (internal
quotation marks and citation omitted).
Zuniga-Capilla did not assert in his direct appeal to the BIA that the
standard that the IJ and the BIA employed to evaluate his request for relief was
improper because it was either contrary to the clear language of § 212(c) or an
impermissible construction of that statute. He did not file a motion to reopen or
for reconsideration. Thus, Zuniga-Capilla did not properly exhaust the issue
whether the IJ and the BIA used an erroneous standard of review to determine
his eligibility for § 212(c) relief. This court therefore lacks jurisdiction to review
the argument. See Omari, 562 F.3d at 320-21.
Zuniga-Capilla also argues that the BIA erred in affirming the IJ’s denial
of his request for § 212(c) relief. He specifically argues that the IJ did not give
proper weight to the factors supporting a discretionary grant of § 212(c) relief
and that the record therefore does not support the denial of relief.
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No. 10-60222
Under 8 U.S.C. § 1252(a)(2)(B)(ii), we generally do not have jurisdiction to
review any judgment regarding the granting or denying of discretionary relief,
including relief under §212(c). While Zuniga-Capilla suggests that his appellate
argument implicates questions of law over which we do have jurisdiction, see
§ 1252(a)(2)(D), he essentially challenges the weight that the IJ afforded specific
discretionary factors in determining whether to grant relief and alleges that the
BIA wrongly adopted the IJ’s findings regarding the relative importance of these
factors. Because the determination that § 212(c) relief is not warranted is not
a question of law, we lack jurisdiction to review Zuniga-Capilla’s challenge to the
BIA’s decision affirming the IJ’s denial of his request for § 212(c) relief. See
Marquez-Marquez v. Gonzales, 455 F.3d 548, 560-61 (5th Cir. 2006)
Accordingly, Zuniga-Capilla’s petition for review is DISMISSED for lack
of jurisdiction.
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