Armando Diaz-Chavez v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 21, 2021
• Docket: 20-12726
• Status: Unpublished

Opinion

USCA11 Case: 20-12726 Date Filed: 04/21/2021 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-12726 Non-Argument Calendar ________________________

Agency No. A205-570-303

ARMANDO DIAZ-CHAVEZ,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the Board of Immigration Appeals ________________________

(April 21, 2021)

Before ROSENBAUM, JILL PRYOR, and LUCK, Circuit Judges.

PER CURIAM:

Facing removal from the United States, Armando Diaz-Chavez, a native and

citizen of Mexico, applied for cancellation of removal and adjustment of status. See USCA11 Case: 20-12726 Date Filed: 04/21/2021 Page: 2 of 4

8 U.S.C. § 1229b(b). He contended that his removal would result in exceptional and

extremely unusual hardship to his mother, who is a United States citizen. An

immigration judge (“IJ”) held a hearing on Diaz-Chavez’s application and denied it,

finding that he had not established the requisite hardship to be eligible for

cancellation of removal. The IJ ordered him removed to Mexico.

Diaz-Chavez filed a notice of appeal from the IJ’s decision to the Board of

Immigration Appeals (“BIA”). But in the designated space on the notice-of-appeal

form, he failed to “[s]tate in detail the reason(s) for this appeal,” which the form

warned was necessary to avoid summary dismissal. Instead, he wrote that he would

“submit an additional brief explaining the detailed reason for the appeal.” He also

checked the box for “yes” when asked whether he intended to file a separate written

brief. This question was followed by a warning that, if he answered “yes,” the BIA

may “summarily dismiss” the appeal if he did not file a brief or statement within the

time limits set in a briefing schedule. The BIA then issued a briefing schedule, but

Diaz-Chavez failed to file a brief or other statement on time or to seek an extension.

So consistent with the warnings on the notice-of-appeal form, the BIA summarily

dismissed the appeal for failure to meaningfully apprise the BIA of the reasons for

appeal and to file a timely brief.

Diaz-Chavez now petitions this Court for review, arguing that the IJ erred in

denying his application for cancellation of removal because he established the

2 USCA11 Case: 20-12726 Date Filed: 04/21/2021 Page: 3 of 4

requisite hardship to a qualifying relative. But we are unable to consider his

arguments challenging the merits of the IJ’s decision because Diaz-Chavez did not

exhaust those arguments by presenting them to the BIA.1 See Jeune v. U.S. Att’y

Gen., 801 F.3d 792, 800 (11th Cir. 2016) (“[W]hen a petitioner has neglected to

assert an error before the BIA that he later attempts to raise before us, the petitioner

has failed to exhaust his administrative remedies.”); Amaya-Artunduaga v. U.S. Att’y

Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (“We lack jurisdiction to consider a

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

administrative remedies with respect thereto.”).

Rather, our review is limited to the BIA’s decision, which did not adopt the

IJ’s decision or findings or otherwise address the merits of Diaz-Chavez’s

application for cancellation of removal. See Jeune, 810 F.3d at 799 (“When the BIA

issues a decision, we review only that decision, except to the extent that the BIA

expressly adopts the immigration judge’s decision.”). Ordinarily, we review a BIA’s

summary dismissal for abuse of discretion. Esponda v. U.S. Att’y Gen., 453 F.3d

1319, 1321 (11th Cir. 2006).

1 Even if these arguments had been exhausted, we would lack jurisdiction to review the IJ’s hardship determination. See Martinez v. U.S. Att’y Gen., 446 F.3d 1219, 1222–23 (11th Cir. 2006) (holding that we lack jurisdiction to review the “purely discretionary decision that a petitioner did not meet § 1229b(b)(1)(D)’s ‘exceptional and extremely unusual hardship’ standard”). 3 USCA11 Case: 20-12726 Date Filed: 04/21/2021 Page: 4 of 4

Here, however, Diaz-Chavez does not address the BIA’s reasons for

summarily dismissing his appeal or state why he believes the BIA was wrong to

dismiss it. And “[w]hen an appellant fails to offer argument on an issue, that issue

is abandoned.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir.

2005) (noting that passing references to an issue are insufficient to raise a claim for

appeal). Accordingly, Diaz-Chavez has abandoned any argument that the BIA

abused its discretion by summarily dismissing his appeal for failure to state the

reasons for the appeal or to file a timely brief after indicating that he would.

Because we lack jurisdiction to consider the only argument Diaz-Chavez has

raised for our review, we must dismiss his petition.

PETITION DISMISSED.