Leonardo Esparza-Diaz v. U.S. Attorney General

606 F. App'x 962
CourtCourt of Appeals for the Eleventh Circuit
DecidedApril 2, 2015
Docket14-11840
StatusUnpublished

This text of 606 F. App'x 962 (Leonardo Esparza-Diaz v. U.S. Attorney General) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Leonardo Esparza-Diaz v. U.S. Attorney General, 606 F. App'x 962 (11th Cir. 2015).

Opinion

PER CURIAM:

Leonardo Esparza-Diaz petitions this court to review the Board of Immigration Appeals’ (BIA) final order affirming the Immigration Judge’s (IJ) denial of his application for cancellation of removal, 8 *963 U.S.C. § 1229b(B). For the reasons that follow, we deny the petition in part and dismiss it in part.

I.

Esparza-Diaz entered the United States without being admitted or paroled in 1989. 1 He eventually moved to Florida, where he was employed, paid taxes, got married, and had children. His parents came to the United States as lawful permanent residents in 2011.

In 2012, the Department of Homeland Security issued Esparza-Diaz a Notice to Appear, charging him as removable due to his illegal entry under 8 U.S.C. § 1182(a)(6)(A)(i). At his hearing before an IJ, Esparza-Diaz conceded his remova-bility and applied for cancellation of removal. 2 The government opposed relief from removal on the ground that Esparza-Diaz was not eligible for cancellation because he had been convicted of a disqualifying offense, specifically, a firearm offense.

The evidence of Esparza-Diaz’s conviction included documents from the Indian River County Sheriffs Office indicating that Esparza-Diaz had been arrested in 1995 for carrying a concealed weapon and selling or giving alcohol to a minor. The case was later transferred to the County Court of Indian River under a “felony reduction,” and Esparza-Diaz was convicted of open carrying of a firearm.

The IJ concluded that Esparza-Diaz was ineligible for cancellation of removal based on this conviction. The IJ then addressed Esparza-Diaz’s counsel:

IJ: You agree with that?
Counsel: I....
IJ: The — for the legal position on, on, on the charge? And then is we pre-termit, does he still want to continue with his withholding?
Counsel: He doesn’t have relief, it’s just for withholding.
Counsel: We’ll take an order.

Based on this exchange, the IJ concluded that Esparza-Diaz conceded he was ineligible for relief, and the IJ ordered his removal.

Esparza-Diaz appealed to the BIA. In his Notice of Appeal, he wrote

It is Respondent’s position that the IJ erred as a matter of law in concluding that Respondent’s conviction for the offense of Possession of a Firearm made the respondent ineligible for the relief sought. A reading of the Statute by itself under the “categorical approach” is not sufficient to warrant a conclusion that Respondent’s conviction made him ineligible for the relief sought. The IJ erred in using the “categorical approach.” The “modified categorical approach” should have been used in this case.

Then, in his brief to the BIA, Esparza-Diaz argued that the IJ “failed to do a proper analysis of the circumstances behind [his] conviction,” and “failed to analyze the statute to see if it indeed was a conviction pursuant to Section 287(a)(2)(C).”

*964 The BIA dismissed the appeal, finding that Esparza-Diaz had not met his burden to show he was eligible for cancellation of removal. The BIA concluded, “It is undisputed that respondent was convicted of carrying a concealed firearm,” and that Esparza-Diaz did not argue that his conviction was not a firearm offense. Espar-za-Diaz now seeks review before this court.

II.

The government argues that Esparza-Diaz failed to exhaust his claims before the BIA, thereby depriving us of jurisdiction to review his claim. Esparza-Diaz contends that the BIA erred by affirming the IJ’s decision because his 1995 conviction was not a disqualifying firearm offense, as he was convicted under a divisible statute that contained both firearm offenses and non-firearm offenses. He further, contends that the IJ and BIA should have applied the law under IMMACT90, rather than IIRIRA, because his conviction predated IIRIRA. Finally, he states that he should not be penalized for the ineffective assistance of his counsel.

III.

We review questions of our subject-matter jurisdiction de novo. Ruiz v. Gonzales, 479 F.3d 762, 765 (11th Cir.2007). 3 We lack jurisdiction to consider a claim raised in a petition for review unless the petitioner has exhausted his administrative remedies with respect thereto. See 8 U.S.C. § 1252(d)(1); see also Amaya-AHimd.ua-ga v. U.S. Att’y Gen., 468 F.3d 1247, 1250 (11th Cir.2006) (stating that, “absent a cognizable excuse or exception, [this Court] lack[s] jurisdiction to consider claims that have not been raised before the BIA”) (citations and quotation omitted). To properly raise a claim before the BIA, the petitioner must mention the issue and discuss its merits, or at least contest the basis for the IJ’s decision. See Alim v. Gonzales, 446 F.3d 1239, 1253 (11th Cir.2006) (concluding that the petitioner failed to exhaust his cancellation-of-removal claim because, in his appeal to the BIA, the petitioner “never discussed the merits of his application for cancellation of removal, let alone the IJ’s basis for denying it”).

Our review of the Notice of Appeal and Esparza-Diaz’s brief to the BIA establish -that Esparza-Diaz sufficiently alleged the IJ’s error before the BIA. Alim, 446 F.3d at 1253. Accordingly, we conclude that Esparza-Diaz exhausted his argument that the IJ erred by finding he was ineligible for relief based on his prior conviction.

rv.

Turning to the merits, we will only review the BIA decision, except to the extent that it expressly adopts the IJ’s opinion, in which case we will also review the IJ’s decision. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.2001). If the BIA explicitly agrees with particular findings of the IJ, we review both the BIA’s and IJ’s conclusions regarding those issues. Ayala v. U.S. Att’y Gen., 605 F.3d 941, 948 (11th Cir.2010). In this case, the BIA expressly agreed with the IJ’s conclusion that Es-parza-Diaz had been convicted of a disqualifying firearm offense. Accordingly, we will review both opinions.

We review de novo questions of law. Accardo v. U.S. Att’y Gen., 634 F.3d 1333, 1335-36 (11th Cir.2011). Review of a removal order is conducted only on the administrative record on which the removal *965 order is based, and we lack the authority to remand a case to the BIA to consider new evidence. See 8 U.S.C.

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Bluebook (online)
606 F. App'x 962, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leonardo-esparza-diaz-v-us-attorney-general-ca11-2015.