Julio Rodriguez-Martinez v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 19, 2023
• Docket: 22-12003
• Status: Unpublished

Opinion

USCA11 Case: 22-12003 Document: 18-1 Date Filed: 05/19/2023 Page: 1 of 6

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 22-12003 Non-Argument Calendar ____________________

JULIO RODRIGUEZ-MARTINEZ, Petitioner, versus U.S. ATTORNEY GENERAL,

Respondent.

Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A097-664-917 ____________________ USCA11 Case: 22-12003 Document: 18-1 Date Filed: 05/19/2023 Page: 2 of 6

2 Opinion of the Court 22-12003

Before JORDAN, BRANCH, and EDMONDSON, Circuit Judges. PER CURIAM: Julio Marcelino Rodriguez-Martinez 1 (“Petitioner”), a native and citizen of Mexico, petitions for review of the order by the Board of Immigration Appeals (“BIA”) affirming the decision of the Immigration Judge (“IJ”). The IJ’s decision denied Petitioner’s mo- tion to reopen and to rescind an order of removal issued in absen- tia. 2 We dismiss the petition for lack of jurisdiction. Petitioner entered the United States without inspection in August 2002. In February 2004, the Immigration and Naturaliza- tion Service issued a Notice to Appear (“NTA”), charging Peti- tioner as removable for being present in the United States without having been admitted or paroled. The NTA ordered Petitioner to appear before an IJ in Orlando, Florida at a date and time to be set. About two weeks later, the immigration court mailed Peti- tioner a Notice of Hearing, giving notice that a master hearing be- fore the immigration court was scheduled for 11 August 2004. A second Notice of Hearing was later mailed rescheduling the master hearing for 1 September 2004.

1 Petitioner says his real name is Victor Vinicio Valdez Avila. For purposes of this appeal, we refer to him as “Petitioner.” 2 The IJ also denied as moot Petitioner’s motion for change of venue. That ruling is not before us on appeal. USCA11 Case: 22-12003 Document: 18-1 Date Filed: 05/19/2023 Page: 3 of 6

22-12003 Opinion of the Court 3

Petitioner failed to appear at the 1 September hearing. The IJ conducted the hearing in absentia and ordered Petitioner re- moved to Mexico. In March 2020 -- more than 15 years after he was ordered removed -- Petitioner (through his lawyer) moved to reopen the proceedings and to rescind the IJ’s in absentia order. Petitioner ar- gued that his removal proceedings should be reopened based on two grounds: (1) under 8 U.S.C. § 1229a(b)(5)(C)(ii) because he did not receive proper notice of the hearing; and (2) based on the IJ’s sua sponte authority. In support of his lack-of-notice argument, Petitioner asserted that the NTA was defective because it specified no date and time for his hearing and, on top of that, he never re- ceived a Notice of Hearing. The IJ denied Petitioner’s motion to reopen. The IJ first de- termined that Petitioner failed to present evidence sufficient to demonstrate a lack of proper notice. Second, the IJ determined that Petitioner had shown no “extraordinary circumstances” that would justify equitably tolling the statutory deadline for filing a motion to reopen. 3 Third, the IJ declined to exercise its sua sponte authority: the IJ concluded that Petitioner failed to establish a “truly excep- tional situation” or a substantial likelihood of a different result.

3 A noncitizen seeking to rescind an order of removal entered in absentia must file a motion to reopen “within 180 days after the date of the order of re- moval.” 8 U.S.C. § 1229a(b)(5)(C)(i). USCA11 Case: 22-12003 Document: 18-1 Date Filed: 05/19/2023 Page: 4 of 6

4 Opinion of the Court 22-12003

Petitioner appealed the IJ’s decision to the BIA. In his coun- seled brief before the BIA, Petitioner argued that the IJ failed to consider adequately “several exceptional factors” in declining to ex- ercise its sua sponte authority. Petitioner presented no discrete ar- gument challenging the IJ’s rulings about lack of proper notice or about equitable tolling. The BIA adopted and affirmed the IJ’s decision and dis- missed Petitioner’s appeal. We review de novo our subject-matter jurisdiction. See In- drawati v. U.S. Att’y Gen., 779 F.3d 1284, 1297 (11th Cir. 2015). We have no jurisdiction to review a final order of removal unless the petitioner has exhausted all administrative remedies. Id. (citing 8 U.S.C. § 1252(d)(1)). To exhaust a claim, a petitioner must have raised before the BIA the “core issue” on appeal and “set out any discrete arguments he relies on in support of that claim.” Jeune v. U.S. Att’y Gen., 810 F.3d 792, 800 (11th Cir. 2016). “Unadorned, conclusory statements do not satisfy this requirement, and the petitioner must do more than make a passing reference to the issue.” Id. (quotations omit- ted). While a petitioner is not required to “use precise legal termi- nology or provide well-developed arguments to support his claim,” he must “provide information sufficient to enable the BIA to re- view and correct any errors below.” Id. (quotation omitted). USCA11 Case: 22-12003 Document: 18-1 Date Filed: 05/19/2023 Page: 5 of 6

22-12003 Opinion of the Court 5

On appeal, Petitioner raises two arguments, each of which focuses on a supposed lack of proper notice. 4 Petitioner first con- tends that his NTA was defective under Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), because it failed to specify the time and place of his hearing. Second, Petitioner argues that the BIA failed to con- sider adequately the evidence showing that he never received a No- tice of Hearing. In his brief to the BIA, Petitioner argued chiefly that the IJ erred in declining to reopen his proceedings under her sua sponte authority. Petitioner made no discrete argument asserting a lack of proper notice. As a result, we have no jurisdiction to consider Petitioner’s lack-of-notice arguments on appeal. See Jeune, 810 F.3d at 800. To the extent the BIA did review sua sponte the IJ’s conclusion that Petitioner failed to demonstrate a lack of proper notice, the BIA’s voluntary act does not change our conclusion about what was put to the BIA by Petitioner and about the scope of our jurisdiction. See Amaya-Argunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250-51 (11th Cir. 2006). Because Petitioner raises only non-exhausted arguments in his petition, we dismiss the petition for lack of jurisdiction.

4 In his appellate brief, Petitioner presents no argument challenging the denial of relief based on equitable tolling or based on the IJ’s sua sponte authority; those arguments are not before us. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (“When an appellant fails to offer argument on an issue, that issue is abandoned.”). USCA11 Case: 22-12003 Document: 18-1 Date Filed: 05/19/2023 Page: 6 of 6

6 Opinion of the Court 22-12003

PETITION DISMISSED.