FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 8, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
JOSE ALFREDO ZACARIAS-GARCIA,
Petitioner,
v. No. 20-9654
(Petition for Review)
MERRICK B. GARLAND, United States
Attorney General,
Respondent.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, KELLY, and McHUGH, Circuit Judges.**
_________________________________
Petitioner Jose Alfredo Zacarias-Garcia seeks review of the Board of
Immigration Appeals’ (BIA) dismissal of his appeal after an immigration judge (IJ)
denied his application for cancellation of removal. Mr. Zacarias-Garcia argues that
he was denied due process because his merits hearing before the IJ was not properly
transcribed. Assessing our jurisdiction under 8 U.S.C. § 1252, we dismiss the
petition because Mr. Zacarias-Garcia failed to exhaust his arguments before the BIA.
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Background
Mr. Zacarias-Garcia, a native and citizen of Mexico, entered the United States
illegally in 1999. In 2011, he was served with a notice to appear in immigration
court and charged with being removable. Mr. Zacarias-Garcia conceded removability
but filed an application for cancellation of removal. A hearing was conducted on
May 21, 2018, during which Mr. Zacarias-Garcia was the sole witness. He testified
about, among other things, entering the country, raising two children with his wife,
purchasing a home, and his employment history. The IJ ultimately denied the
application for cancellation of removal because Mr. Zacarias-Garcia failed to
establish that his removal would result in “exceptional and extremely unusual
hardship” for his two children. A.R. 29–36; see 8 U.S.C. § 1229b(b)(1)(D). The IJ
granted Mr. Zacarias-Garcia’s request for voluntary departure.
Mr. Zacarias-Garcia filed a notice of appeal with the BIA stating that the IJ
“wrongly decided” his case and did not properly consider the evidence regarding the
hardships that his children would face. A.R. 24. On December 2, 2020, the BIA
dismissed the appeal and ordered Mr. Zacarias-Garcia removed. The BIA stated that
he did not show the requisite hardship and that the IJ properly considered the
evidence. Additionally, the BIA noted that he failed to file a brief and that his notice
of appeal did not “meaningfully challenge the [IJ]’s findings of fact or conclusions of
law.” Id. at 3. Mr. Zacarias-Garcia filed a petition for review in this court.
2
Discussion
Mr. Zacarias-Garcia argues that he has been denied due process because his
merits hearing was not transcribed. Not only does it appear that the hearing was
transcribed, see id. at 97–131,1 but Mr. Zacarias-Garcia did not exhaust this argument
before the BIA. His notice of appeal only argued that the IJ did not adequately
consider the evidence in reaching its conclusion and did not mention any issues
regarding the hearing transcript. See id. at 24. We therefore lack jurisdiction to
consider his argument because “an alien must present the same specific legal theory
to the BIA before he or she may advance it in court.” Garcia-Carbajal v. Holder, 625
F.3d 1233, 1237 (10th Cir. 2010); see 8 U.S.C. § 1252(d)(1). This is true even
though Mr. Zacarias-Garcia attempts to frame his argument “in terms of
constitutional due process” because the BIA could have remedied such a problem.
See Vicente-Elias v. Mukasey, 532 F.3d 1086, 1094 (10th Cir. 2008). Thus, his
petition for review must be dismissed as to that argument.
Mr. Zacarias-Garcia raised no other arguments in his opening brief, but in his
reply contends that he was wrongfully denied cancellation of removal based on the
facts of the case. Although this argument is consistent with his arguments before the
BIA, it also fails to establish jurisdiction here. First, this court ordinarily will not
consider arguments “raised for the first time in a reply brief.” McKenzie v. U.S.
Citizenship and Immigr. Servs., 761 F.3d 1149, 1154–55 (10th Cir. 2014). And
1
Mr. Zacarias-Garcia acknowledges that the hearing was transcribed in his
reply brief. See Reply Br. at 4.
3
second, we lack jurisdiction over “the determination of whether the petitioner’s
removal from the United States ‘would result in exceptional and extremely unusual
hardship’ to a qualifying relative under 8 U.S.C. § 1229b(b)(1)(D).” Galeano-
Romero v. Barr, 968 F.3d 1176, 1181 (10th Cir. 2020) (citation omitted); see also id.
at 1182–84 (discussing how discretionary determinations do not raise “questions of
law” that are subject to review).
Accordingly, the petition for review is DISMISSED for lack of jurisdiction,
and the Respondent’s motion to dismiss is GRANTED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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Zacarias-Garcia v. Garland
Combined Opinion