Luis Eduardo Sagastume-Montiel v. U.S. Attorney General

Case: 16-12028 Date Filed: 01/17/2017 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 16-12028
Non-Argument Calendar
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Agency No. A094-806-031

LUIS EDUARDO SAGASTUME-MONTIEL,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

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Petition for Review of a Decision of the
Board of Immigration Appeals
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(January 17, 2017)

Before HULL, WILSON and WILLIAM PRYOR, Circuit Judges.

PER CURIAM:
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Luis Eduardo Sagastume-Montiel, a native and citizen of Guatemala,

petitions for review of an order affirming the denial of his application for

cancellation of removal. See 8 U.S.C. § 1229b(b)(1). The Board of Immigration

Appeals affirmed the finding that Sagastume-Montiel was removable as an

inadmissible alien by virtue of being an applicant for admission to the United

States without a valid entry document. See id. § 1182(a)(7)(A)(i)(I). Sagastume-

Montiel argues that he was not an applicant for admission because he was allowed

to reenter the country under an advance authorization for parole. Sagastume-

Montiel also argues that, even if he was an applicant, his advance parole was a

“valid entry document” that entitled him to admission to the country. We deny in

part and dismiss in part Sagastume-Montiel’s petition.

The Board did not err in finding that Sagastume-Montiel was an

inadmissible alien. In 1998, Sagastume-Montiel entered the United States on a

nonimmigrant visa, but he remained in the country without authorization and was

arrested after misrepresenting that he was a U.S. citizen. After Sagastume-

Montiel’s immigration proceedings were deferred, he received advance

authorization for parole and left the country. Sagastume-Montiel returned to the

United States as an inadmissible alien. “[A]t the time of application for

admission,” Sagastume-Montiel was “not in possession of a valid unexpired

immigrant visa, reentry permit, border crossing identification card, or other valid

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entry document required by this chapter, and a valid unexpired passport, or other

suitable travel document, or document of identity and nationality.” Id. Although

Sagastume-Montiel was paroled into the United States, “such parole . . . [was]

not . . . regarded as an admission” and it was immediately terminated, which

resulted in him being “dealt with . . . as that of any other applicant for admission to

the United States.” See id. § 1182(d)(5)(A); see also id. § 1101(a)(13)(B) (“An

alien who is paroled under section 1182(d)(5) of this title . . . shall not be

considered to have been admitted.”). Parole “allowed [Sagastume-Montiel] into the

country but [he] remain[ed] constructively at the border, seeking admission and

subject to exclusion proceedings.” See Assa’ad v. U.S. Att’y Gen., 332 F.3d 1321,

1338 (11th Cir. 2003); see also Leng May Ma v. Barber, 357 U.S. 185, 190 (1958)

(“parole . . . is simply a device through which needless confinement is avoided

while administrative proceedings are conducted” and “was never intended to affect

an alien’s status”). We deny that part of Sagastume-Montiel’s petition challenging

his classification as an inadmissible alien.

We lack jurisdiction to review whether Sagastume-Montiel’s advance parole

served as a valid entry document. That issue was not addressed during Sagastume-

Montiel’s removal hearing or in his appeal to the Board. See Lin v. U.S. Att’y Gen.,

555 F.3d 1310, 1316–17 n.5 (11th Cir. 2009). “We lack jurisdiction to consider a

claim raised in a petition for review unless the petitioner has exhausted his

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administrative remedies with respect thereto.” Amaya–Artunduaga v. U.S. Att’y

Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). We dismiss this part of Sagastume-

Montiel’s petition.

PETITION DENIED IN PART AND DISMISSED IN PART.

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