Cuellar De Marroquin combined decisions 3rd Cir and AAO
http://www.ca3.uscourts.gov/opinarch/114448np.pdf NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________ No. 11-4448 ____________ MILVIA MARITZA CUELLAR DE MARROQUIN, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent __________________________________ On a Petition For Review of an Order of the Board of Immigration Appeals (Agency No. A073-127-873) Immigration Judge: Susan G. Roy __________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a) October 10, 2012 Before: AMBRO, ALDISERT and NYGAARD, Circuit Judges (Opinion filed: October 11, 2012) ____________ OPINION ____________PER CURIAM Milvia Maritza Cuellar de Marroquin (“Cuellar”) petitions for review of the Boardof Immigration Appeals’ final order of removal. For the reasons that follow, we willdeny the petition for review.
Cuellar, a native and citizen of Guatemala, entered the United States withoutinspection on or about May 4, 1994 near Douglas, Arizona. She was placed indeportation proceedings pursuant to an Order To Show Cause, which charged that shewas deportable for her unlawful entry. Cuellar submitted an application for asylum andwithholding of removal, but, on May 8, 1995, she withdrew the application. TheImmigration Judge then granted her voluntary departure until May 8, 1996, and orderedher deportation to Guatemala in the alternative. Cuellar waived an appeal of theImmigration Judge’s May 8, 1995 decision. Cuellar did not depart the United States by May 8, 1996, and, on May 9, 1996, aWarrant of Removal/Deportation was issued against her. Meanwhile, Cuellar’s husband,Luis Marroquin, a lawful permanent resident, filed a visa petition on her behalf, whichwas approved on October 18, 1995. On October 1, 1996, daughter Kimberly was born tothe couple in New Jersey. Over four years later, on February 16, 2001, Cuellar filed an Application forWaiver of Grounds of Excludability (Form I-601) and an Application for Permission toReapply for Admission After Deportation or Removal (Form I-212), 8 U.S.C. §1182(a)(9)(A). Cuellar gave birth to the couple’s daughter Jamie on September 7, 2001.On August 10, 2002, District Director Andrea J. Quarantillo denied the applications forwaiver and permission to reapply for admission, concluding that Cuellar’s disregard ofU.S. immigration laws outweighed the hardship to her family that would result from herdeportation. Cuellar appealed, but on January 30, 2008, the Administrative AppealsOffice (“AAO”) dismissed her appeal. The AAO, noting that Cuellar was inadmissible Did it really take five and one-half 2 years to reach a decision on appeal?
under 8 U.S.C. § 1182(a)(9)(A)(ii)(I) (2010) (alien ordered removed and who seeksadmission within 10 years of the date of such alien’s removal is inadmissible), found thather family ties to a lawful permanent resident and United States citizens (her husband andchildren), the general hardship they would experience if she was deported, the fact thatshe had no criminal record, and her approved visa petition, all weighed in favor ofgranting her relief from deportation. But the unfavorable factors – her initial entrywithout inspection, her failure to abide by an order of deportation, and periods ofunauthorized presence in the United States – could not be condoned, and a favorableexercise of discretion was not warranted in her case. On August 27, 2009, Cuellar turned to the Immigration Court and filed a motion toreopen deportation proceedings. A new Immigration Judge was assigned to her case.Cuellar asserted that exceptional circumstances beyond her control had prevented herfrom complying with the voluntary departure order in 1996, and that she now was primafacie eligible to adjust her status. Cuellar explained in her motion to reopen that she didnot depart the United States by May 8, 1996 because she was pregnant and receivingquality prenatal care through her husband’s health insurance plan. She was concernedthat she would not be able to get adequate prenatal care in Guatemala, since there is nofree access to health care there. Cuellar provided documentation with respect toGuatemala’s substandard health care system. The Department of Homeland Security didnot respond to the motion to reopen. On November 6, 2009, the Immigration Judge denied the motion to reopen asuntimely filed under 8 C.F.R. § 1003.23(b)(1) (providing that motion to reopen be filed 3
within 90 days of entry of final order of removal or by September 30, 1996). No jointmotion had been filed and Cuellar did not raise a claim for asylum or withholding ofremoval, see id. at § 1003.23(b)(4)(i) and (iv), so no exceptions to the timelinessrequirement applied to her case. The IJ rejected Cuellar’s exceptional circumstancesargument. Noting that only exceptional circumstances beyond the control of an alienwould excuse the failure to depart voluntarily, 8 U.S.C. § 1252b(e)(2)(A) (repealed1996); that an alien who had remained in the United States beyond the voluntarydeparture period could not apply for adjustment of status for a period of five years absenta showing of exceptional circumstances for failing to depart; and that the term“exceptional circumstances” includes serious illness of the alien or death of an immediaterelative of the alien but does not include less compelling circumstances beyond thecontrol of the alien, see id. at § 1252b(f)(2), the IJ reasoned that Cuellar had not showncompelling circumstances beyond her control. The IJ noted that Cuellar did not allegethat she suffered from any illness or complications during her pregnancy, she did notallege that her child suffered from any prenatal complications, and she did not claim thatshe had experienced any prenatal or postnatal complications following the birth of herfirst child in Guatemala. 1 The IJ also concluded that Cuellar was not eligible foradjustment of status because her application for readmission to the United States hadbeen denied by the District Director.1 The couple’s first child was born in Guatemala on April 9, 1993 and still resides there.The couple send money to the person who is raising this child in Guatemala. 4
Cuellar appealed to the Board of Immigration Appeals, contending that herdeportation proceedings should be reopened in order for her to pursue adjustment ofstatus, because her failure to depart by May 8, 1996 was due to exceptional circumstancesbeyond her control, that is her pregnancy and need for prenatal care. Moreover, sincemore than five years had elapsed since the departure order, she was no longer disqualifiedfrom applying for adjustment of status, A.R. 15. In essence, Cuellar argued that,although she was advised that she would face a disqualification for a period of years ifshe did not depart, she was also advised that there would be no consequences if thatfailure was due to exceptional circumstances, see id. at 17. On November 14, 2011, the Board dismissed the appeal. The Board concludedthat the record established that the original Immigration Judge’s voluntary departureorder provided Cuellar with the correct written warnings concerning the five-yearadjustment of status disqualification, citing page 2 of the order. The Board nextconcluded that Cuellar’s motion to reopen was not timely filed because the motion wasdue no later than September 30, 1996, but it was not filed until August 27, 2009.Moreover, no regulatory exceptions to the filing deadline applied, and a motion to reopenin order to apply for adjustment of status does not fall within any of the statutory orregulatory exceptions to the filing deadline. Because Cuellar’s motion to reopen wasuntimely filed, the Board found it unnecessary to address the IJ’s additional conclusionsthat Cuellar was barred in any event from adjustment of status under 8 U.S.C. §1182(a)(9), and that her pregnancy and desire for prenatal care did not establishexceptional circumstances for her failure to depart the United States by May 8, 1996. 5
The Board also declined to reopen proceedings sua sponte, see Matter of J-J-, 21 I. & N.Dec. 976 (BIA 1997), noting that Cuellar had obtained “additional equities” as a result ofoverstaying the voluntary departure period. A.R. 4. Cuellar petitions for review of the Board’s decision. We have jurisdiction under 8U.S.C. § 1252(a)(1) and (b)(1) to review the Board’s November 14, 2011 decision. Inher brief, Cuellar argues that her proceedings should be reopened “on the grounds that theadverse consequences” of failing to depart within the voluntary departure period “attachonly if the Immigration Judge provides certain oral warnings, where the recordestablishes that only written warnings were provided….” See Petitioner’s Brief, at 2.Cuellar argued that, pursuant to former 8 U.S.C. § 1252b(e)(2), the issuance of writtenwarnings alone does not disqualify an alien from receiving immigration benefits, see id.at 12, 15, and she cited Barker v. Ashcroft, 382 F.3d 313, 316 (3d Cir. 2003), where, wenote, the alien argued that a general warning about losing the right to apply for certainimmigration benefits and a general statement about what constitutes exceptionalcircumstances, is insufficient. See Petitioner’s Brief, at 15-16. The Department ofHomeland Security argues that we lack jurisdiction over this argument because Cuellarfailed to exhaust her administrative remedies with respect to it. We will deny the petition for review. An alien must exhaust all administrativeremedies available to her as a prerequisite to raising a claim before this Court. See 8U.S.C. § 1252(d)(1); Yan Lan Wu v. Ashcroft, 393 F.3d 418, 422 (3d Cir. 2005). Failureto present an issue to the agency constitutes a failure to exhaust, thus depriving us ofjurisdiction to consider it. See Lin v. Att’y Gen. of the U.S., 543 F.3d 114, 119-20 (3d 6
Cir. 2008). Exhaustion of administrative remedies is satisfied so long as the alien makessome effort to place the agency on notice of a straightforward issue, see Joseph v. Att’yGen. of the U.S., 465 F.3d 123, 126 (3d Cir. 2006), and we have commented that our“exhaustion policy” is “liberal,” id., but Cuellar concedes that she did not present theargument to the agency that she did not receive the warning concerning the five-yearadjustment of status disqualification orally. See Petitioner’s Brief, at 12, 15. In Barker, we held that the alien failed to raise her issue that she did not receiveadequate or sufficient oral notice of the consequences of failing to depart voluntarily, andthat her failure to raise the issue before the agency barred our consideration of this issue.382 F.3d at 317. Barker applies here and cannot be distinguished, because Cuellarargued before the Board only that her pregnancy and desire for prenatal care was acompelling circumstance beyond her control. She raised no issue before the agency thatthe warnings she received were insufficient under former section 1252b(e)(2) becausethey were not oral. Accordingly, her failure to raise the issue before the agency bars ourconsideration of this issue. Barker, 382 F.3d at 317. 2 In any event, the failure to give oral warnings regarding the adjustment of statusdisqualification would not exempt a subsequent motion to reopen from the timelinessrequirement, see 8 C.F.R. § 1003.23(b)(4)(i)-(iv), just as the Board held. Cuellar argued2 Having failed to squarely present the oral warnings issue to the Board, Cuellar gave theBoard no opportunity or reason to point out that the Immigration Judge’s 1995 orderincludes not only written warnings about the five-year adjustment of statusdisqualification, but also this statement, just above the Immigration Judge’s signature:“This written notice was provided to the alien in English and in Spanish. Oral notice ofthe contents of this notice was given to the alien in his/her native language, or in alanguage he/she understands.” A.R. 121. 7
before the Board that the time limitation for motions to reopen should not apply to herbecause she showed exceptional circumstances for failing to depart during the voluntarydeparture period. We review the Board’s denial of a motion to reopen for abuse ofdiscretion. Immigration & Naturalization Serv. v. Doherty, 502 U.S. 314, 323 (1992).Under this standard, we will reverse the Board’s decision only if it is arbitrary, irrational,or contrary to law. Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002). An abuse ofdiscretion is found only “in those circumstances where the Board’s decision provides norational explanation, inexplicably departs from established policies, is devoid of anyreasoning, or contains only summary or conclusory statements; that is to say, where theBoard has acted in an arbitrary or capricious manner.” Shardar v. Att’y Gen. of the U.S.,503 F.3d 308, 316 (3d Cir. 2007)(quoting Zhao v. Dep’t of Justice, 265 F.3d 83, 93 (2dCir. 2001)). The Board did not abuse its discretion in concluding that Cuellar’s motion toreopen was untimely filed and that no statutory or regulatory exceptions applied toexcuse the untimeliness. A motion to reopen must be filed no later than 90 days after thedate on which the final administrative decision was rendered in the proceeding sought tobe reopened, or on or before September 30, 1996, whichever is later. 8 C.F.R.1003.23(b)(1). See also 8 U.S.C. § 1229a(c)(7)(C)(i). Cuellar thus had until September30, 1996 in which to file a timely motion to reopen and raise her argument that herdeportation proceedings should be reopened in order for her to pursue adjustment ofstatus, because her failure to depart was due to compelling circumstances beyond her 8
control, that is her pregnancy and need for prenatal care. She plainly failed to file hermotion to reopen by the deadline. An untimely motion to reopen may be considered in certain limited circumstances:(1) where the alien seeks to apply or reapply for asylum or withholding of removal basedon changed country conditions; (2) where the alien seeks recission of an in absentia orderof removal; or (3) where the motion has been jointly filed and agreed upon by all parties.8 C.F.R. § 1003.23(b)(4)(i)-(iv). See also 8 U.S.C. §§1229a(c)(7)(C)(ii)-(iii). The Boardproperly concluded that none of the statutory and regulatory exemptions applies inCuellar’s case, 3 and properly pointed out that eligibility for adjustment of status is notamong the statutory or regulatory exemptions. See Matter of Yauri, 25 I. & N. Dec. 103,105 (BIA 2009). Moreover, although the Board has the authority to reopen proceedingssua sponte, see 8 C.F.R. § 1003.23(a), its decision not to exercise its discretion, where, ashere, it did not rely on an incorrect legal premise, is unreviewable. See Calle-Vujiles v.Ashcroft, 320 F.3d 472, 475 (3d Cir. 2003). See also Pllumi v. Att’y Gen. of the U.S.,642 F.3d 155, 160 (3d Cir. 2011). For the foregoing reasons, we will deny the petition for review.3 The statute also provides special rules for battered spouses, children and parents, see id.at § 1229a(c)(7)(C)(iv). 9
U.S. Department of Homeland Security 20 Massachusetts Avenue, N.W., Rrn. 3000 Washington, DC 20529 U.S. Citizenship Ir&oPparsoaal privacy and ImmigrationFILE: Office: NEWARK, NJ Date: JAN 3 0 ~ U 0 8IN RE: Applicant:APPLICATION: Application for Permission to Reapply for Admission into the United States after Deportation or Removal under Section 212(a)(9)(A) of the Immigration and Nationality Act, 8 U. S.C. 5 1182(a)(9)(A)ON BEHALF OF APPLICANT:INSTRUCTIONS:This is the decision of the Administrative Appeals Office in your case. All documents have been returned tothe office that originally decided your case. Any further inquiry must be made to that office.Robert P. Wiemann, ChiefAdministrative Appeals Office
DISCUSSION: The application for permission to reapply for admission after removal was denied by theDistrict Director, Newark, New Jersey, and is now before the Administrative Appeals Office (AAO) onappeal. The appeal will be dismissed. -The applicant is a native and citizen of Guatemala who married a lawfulpermanent resident of the United States, on May 23, 1992, in Guatemala. On May 4, 1994, the applicantentered the United States without inspection. On the same day, an Order to Show Cause (OSC) was issuedagainst the applicant. On September 19, 1994, the applicants husband filed a Petition for Alien Relative(Form 1-130) on behalf of the applicant. On September 27, 1994, the applicant filed a Request for Asylum inthe United States (Form 1-589). On May 8, 1995, the applicant withdrew her Form 1-589. On the same day,an immigration judge granted the applicant voluntary departure. On October 18, 1995, the applicants Form1-130 was approved. The applicant failed to depart the United States as ordered. On May 9, 1996, a Warrantof Removal/Deportation (Form 1-205) was issued. On October 1, 1996, the appljcants daughter,was born in New Jersey. On February 16, 2001, the applicant filed an Application for Waiver of Grounds ofExcludability (Form 1-601) and an Application for Permission to ReapplRemoval (Form 1-212). On September 7,200 1, the applicants daughter, w dmission After Deportation or was born in New Jersey. Theapplicant is inadmissible to the United States under section 212(a)(9)(A)(ii)(I) of the Immigration andNationality Act (the Act), 8 U.S.C. 9 1182(a)(9)(A)(ii)(I). She now seeks permission to reapply for admissioninto the United States under section 212(a)(9)(A)(iii) of the Act, 8 U.S.C. 9 1182(a)(9)(A)(iii), in order toreside with her lawful permanent resident spouse and two United States citizen children.The Director determined that the unfavorable factors in the applicants case outweighed the favorable factors, t+and denied the applicants Form 1-2 12 accordingly. Director s Decision, dated August 10, 2002.Section 2 12(a)(9). Aliens previously removed.- (A) Certain alien previously removed.- (ii) Other aliens.- Any alien not described in clause (i) who- (I) has been ordered removed under section 240 or any other provision of law, or (11) departed the United States while an order of removal was outstanding, and seeks admission within 10 years of the date of such aliens departure or removal (or within 20 years of such date in the case of a second or subsequent removal or at any time in the case of an aliens convicted of an aggravated felony) is inadmissible. (iii) Exception.- Clauses (i) and (ii) shall not apply to an alien seeking admission within a period if, prior to the date of the aliens reembarkation at a place outside the United States or attempt to be admitted from foreign continuous territory, the Attorney
General [now, Secretary, Department of Homeland Security] has consented to the aliens reapplying for admission.A review of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) amendments tothe Act and prior statutes and case law regarding permission to reapply for admission reflects that Congresshas, (1) increased the bar to admissibility and the waiting period from 5 to 10 years in most instances and to20 years in others, (2) has added a bar to admissibility for aliens who are unlawfully present in the UnitedStates, and (3) has imposed a permanent bar to admission for aliens who have been ordered removed and whosubsequently enter or attempt to enter the United States without being lawfully admitted. It is concluded thatCongress has placed a high priority on deterring aliens from overstaying their authorized period of stay andfrom being present in the United States without lawful admission or parole.On appeal, the applicant, through counsel, contends that the Director "improperly denied [the Form I-2123.. .[The Director] wrongly found that no extreme hardship would inure to the applicants United Statescitizen children in the event that she were to depart from the country. [The Director] also placed too muchweight on a prior withdrawal of an asylum application." Form I-290B, filed September 12, 2002. The AAOnotes the neither the applicant nor her husband submitted a statement regarding the hardship they wouldsuffer if the applicant were removed to Guatemala. Additionally, there is no evidence that the applicantprovides any assistance in raising the children or contributes financially to the household. The AAO notesthat unlike sections 212(g), (h), and (i) of the Act (which relate to waivers of inadmissibility for prospectiveimmigrants), section 2 12(a)(9)(A)(iii) of the Act does not specify hardship threshold requirements which mustbe met. An applicant for permission to reapply for admission into the United States after deportation orremoval need not establish that a particular level of hardship would result to a qualifying family member ifthe application were denied. The AAO will consider the hardship to the applicants father and children, but itwill be just one of the determining factors.The record of proceedings reveals that on May 4, 1994, the applicant entered the United States withoutinspection. On May 8, 1995, an immigration judge granted the applicant voluntary departure. The applicantfailed to depart the United States as ordered. On May 9, 1996, a Warrant of Removal/Deportation was issued.Based on the applicants previous order of removal, the applicant is clearly inadmissible under section2 12(a)(9)(A)(ii)(I) of the Act.In Matter of Tin, 14 I&N Dec. 371 (Reg. Comm. 1973) the Regional Commissioner listed the followingfactors to be considered in the adjudication of a Form 1-212 Application for Permission to Reapply AfterDeportation: The basis for deportation; recency of deportation; length of residence in the United States; applicants moral character; his respect for law and order; evidence of reformation and rehabilitation; family responsibilities; any inadmissibility under other sections of law; hardship involved to himself and others; and the need for his services in the United States.In Tin,the Regional Commissioner noted that the applicant had gained an equity (job experience) while beingunlawfully present in the U.S. The Regional Commissioner then stated that the alien had obtained an
: Page 4 advantage over aliens seeking visa issuance abroad or who abide by the terms of their admission while in this country, and he concluded that approval of an application for permission to reapply for admission would condone the aliens acts and could encourage others to enter the United States to work unlawfully. Id. The favorable factors in this matter are the applicants family ties to a lawful permanent resident and United States citizens, her husband and children, general hardship they may experience, no criminal record, and the approval of a petition for alien relative. The AAO finds that the unfavorable factors in this case include the applicants initial entry without inspection, her failure to abide by an order of deportation, and periods of unauthorized presence. The applicants actions in this matter cannot be condoned. The applicant has not established by supporting evidence that the favorable factors outweigh the unfavorable ones. Section 291 of the Act, 8 U.S.C. 5 1361, provides that the burden of proof is upon the applicant to establish that she is eligible for the benefit sought. After a careful review of the record, it is concluded that the applicant has failed to establish that a favorable exercise of the Secretarys discretion is warranted. Accordingly, the appeal will be dismissed. ORDER: The appeal is dismissed.