Petition for Review of an Order from the Board of Immigration
Elinoff, Elinoff & Associates (Danielle C. Jefferis, with
him on the supplemental brief), Denver, Colorado, for
A. Readler and Joseph H. Hunt, Acting Assistant Attorneys
General, Civil Division, Kohsei Ugumori, Senior Litigation
Counsel, and Aric A. Anderson, Trial Attorney, Office of
Immigration Litigation, Civil Division, U.S. Department of
Justice, Washington, D.C., on the briefs for Respondent.
HARTZ, EBEL, and McHUGH, Circuit Judges.
Karen Robles-Garcia, a Mexican citizen unlawfully in the
United States, was ordered removed. She challenges that
removal order in two ways. First, relying on Pereira v.
Sessions, 138 S.Ct. 2105 (2018), Robles-Garcia argues
for the first time that the immigration judge
("IJ") who initially presided over her removal
proceedings never acquired jurisdiction over those
proceedings because the Department of Homeland Security
("DHS") initiated those proceedings by serving
Robles-Garcia with a defective Notice to Appear. Because
Robles-Garcia has not yet made that argument to the IJ or the
Board of Immigration Appeals ("BIA"), it is
unexhausted and we, therefore, cannot address it in the first
instance here. Second, Robles-Garcia contends that the BIA
erred in concluding that she was ineligible to apply for
discretionary cancellation of removal. We uphold that
determination because Robles-Garcia was unable to show that
her theft conviction was not a disqualifying crime involving
moral turpitude. We, therefore, DENY Robles-Garcia's
petition for review challenging the BIA's determination
that she was ineligible for cancellation of removal, and we
DISMISS the petition for lack of jurisdiction to the extent
that it asserts the Pereira question.
1991, at age three, Robles-Garcia was admitted to the United
States as a nonimmigrant visitor authorized to remain in this
country for up to seventy-two hours and to travel within
twenty-five miles of the Mexican border. She stayed longer
and traveled further than permitted. In 2008, DHS served
Robles-Garcia with a Notice to Appear ("NTA")-the
document that DHS issues an immigrant to initiate removal
proceedings-charging her with violating her visitor
permissions from almost seventeen years earlier.
Robles-Garcia admitted the five factual allegations charged
in the NTA and conceded she is removable. But she applied for
cancellation of removal and adjustment of her status,
asserting that her removal would work an "exceptional
and extremely unusual hardship" on her two children, 8
U.S.C. § 1229b(b)(1)(D), who are U.S. citizens. To be
eligible to request such discretionary relief from removal,
however, Robles-Garcia had to show, among other things, that
she did not have a conviction for a crime involving moral
turpitude ("CIMT"). See 8 U.S.C. §
1229b(b)(1)(C) (applying 8 U.S.C. §§ 1182(a)(2),
1227(a)(2)). The IJ determined that Robles-Garcia had failed
to show that her 2007 theft conviction was not a CIMT; the
BIA upheld that determination. Our review here is of the
BIA's decision. See Sarr v. Gonzales, 474 F.3d
783, 790 (10th Cir. 2007).
lack jurisdiction to consider Robles-Garcia's unexhausted
initial matter, before this court Robles-Garcia now asserts
for the first time a new argument challenging the BIA's
order removing her from the United States. While her petition
for review was already pending before us, the Supreme Court
decided Pereira v. Sessions, 138 S.Ct. 2105 (2018).
Pereira addressed an NTA that failed to give
statutorily required notice of the time and place for the
removal proceedings, see 8 U.S.C. §
1229(a)(1)(G)(i), holding that NTA was inadequate to trigger
a statutory stop-time rule. Pereira, 138 S.Ct. at
2109-10. Based on Pereira, Robles-Garcia argues for
the first time here that the NTA that DHS served her was
similarly deficient and, therefore, was inadequate to vest
the IJ with jurisdiction over these removal proceedings.
Because Robles-Garcia has not yet raised that argument to the
IJ or BIA, it is unexhausted and we, therefore, cannot
address it here.
court may review a final order of removal only if . . . the
alien has exhausted all administrative remedies available to
the alien as of right . . . ." 8 U.S.C. §
1252(d)(1). The Tenth Circuit has applied this statutory
exhaustion requirement to conclude that "[t]he failure
to raise an issue on appeal to the [BIA] constitutes failure
to exhaust administrative remedies with respect to that
question and deprives the Court of Appeals of
jurisdiction to hear the matter."
Rivera-Zurita v. INS, 946 F.2d 118, 120 n.2 (10th
Cir. 1991) (emphasis added); see also Lucio-Rayos v.
Sessions, 875 F.3d 573, 579 n.9 (10th Cir. 2017). This
exhaustion requirement is based generally on "a
fundamental principle of administrative law that an agency
must have the opportunity to rule on a challenger's
arguments before the challenger may bring the arguments to
court." Garcia-Carbajal v. Holder, 625 F.3d
1233, 1237 (10th Cir. 2010). See generally City of
Arlington v. FCC, 569 U.S. 290, 293, 296-301, 307 (2013)
(holding courts should afford Chevron deference to
agency's determination of its statutory authority to act
when that statute is ambiguous).
then, because Robles-Garcia has not yet made her
Pereira argument to the IJ or the BIA, we lack
jurisdiction to consider it. We reach this conclusion with
some reluctance, for several reasons.
the Supreme Court has warned us that we should be sparing in
our use of the word "jurisdiction." See Fort
Bend Cty. v. Davis, 139 S.Ct. 1843, 1848-50 (2019);
Gonzalez v. Thaler, 565 U.S. 134, 141-42 (2012);
see also Sky Harbor Air Serv., Inc. v. Reams, 491
Fed.Appx. 875, 891 n.17 (10th Cir. 2012) (unpublished)
(listing some of the Supreme Court cases