Pacheco v. Attorney General of the United States

426 F. App'x 139
CourtCourt of Appeals for the Third Circuit
DecidedMay 4, 2011
DocketNo. 09-3653
StatusPublished

This text of 426 F. App'x 139 (Pacheco v. Attorney General of the United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pacheco v. Attorney General of the United States, 426 F. App'x 139 (3d Cir. 2011).

Opinion

OPINION OF THE COURT

SCIRICA, Circuit Judge.

Victor Pacheco, an Ecuadorian citizen, petitions for review of the Board of Immigration Appeals’ (BIA) order dismissing the appeal of an Immigration Judge’s refusal to grant a sixth continuance in his removal proceedings. We will affirm the BIA’s order and deny Pacheco’s petition for review.

I.

Pacheco entered the United States without inspection in 2001 at the age of fourteen. While living and working illegally in New Jersey, he formed a relationship with a United States citizen, Stephanie Cruz, who was then a ward of the state. Pacheco fathered a child by Cruz. Cruz, who was seventeen years old at the time, gave birth to the child in 2008.

On December 30, 2008, the Department of Homeland Security served Pacheco with a Notice to Appear charging him with being subject to removal because he was an alien present in the United States who had not been admitted or paroled. See 8 U.S.C. § 1182(a)(6)(A)(i). He was taken into federal immigration detention. Subsequently, the State of New Jersey began proceedings to terminate the parental rights of Pacheco and Cruz, in part because Cruz was a minor who was herself a ward of the state.

Pacheco first appeared before the immigration court on January 12, 2009. At that time, he was granted a continuance to obtain counsel. He again appeared before the immigration court without counsel on February 2, 2009, and requested an additional continuance to obtain counsel, which the immigration judge granted. He subsequently obtained counsel, who conceded removability on February 23, 2009, but requested and was granted four more continuances to investigate options for relief from removal.

Pacheco’s counsel noted as early as March 16, 2009, that Pacheco intended to apply for discretionary parole. But neither Pacheco nor his counsel took any affirmative action to file an application. On April 13, 2009, Pacheco and counsel again appeared before the IJ and requested yet another continuance to apply for discretionary parole into the United States. See 8 U.S.C. § 1182(d)(5)(A).

During the April hearing, Pacheco contended he might be eligible for discretionary parole, explaining his circumstances may comprise “urgent humanitarian reasons or significant public benefit,” within the meaning of the Immigration and Nationality Act (INA) § 212(d)(5)(A), 8 U.S.C. § 1182(d)(5)(A). According to Pacheco, if he were granted parole, he could marry Cruz, which could subsequently form the basis of an application for adjustment of status under INA § 245(a), 8 U.S.C. § 1255(a), entitling him to relief from removal. The IJ, taking into account Pacheco’s parental rights, noted the situation was “sympathetic,” but denied the request for a continuance because Pacheco conceded removability and conceded he had no relief immediately available to him, and because the Department of Homeland Security indicated through counsel it [142]*142would not exercise its discretion if Pacheco were to apply for parole. The BIA dismissed the appeal, discussing the IJ’s decision and noting among other factors that six prior continuances had been granted in the case.

Pacheco applied for a stay of removal, which we granted, and he now timely petitions for review of the BIA’s decision.1

II.

As a threshold matter, we address the government’s contention that we lack jurisdiction to hear two of Pacheco’s arguments. The government contends Pacheco failed to exhaust two issues: (1) that the IJ and the BIA failed to adequately consider his parental rights, including the termination of parental right proceedings, when denying the request for a continuance to apply for discretionary parole; and (2) that the IJ and the BIA failed to adequately consider his parental rights as an independent basis for a continuance even absent any available relief from removal.

We have interpreted INA’s administrative exhaustion provisions, see 8 U.S.C. § 1252(d)(1), to require a petitioner to have exhausted an issue below in order to raise it on appeal. See Lin v. Att’y Gen., 543 F.3d 114, 120 (3d Cir.2008). But we have explained “[o]ur ‘liberal exhaustion policy’ ... instructs] that the notice of appeal [to the BIA]” need only set forth “sufficient facts and law to inform the BIA of the basis for the appeal.” Hoxha v. Holder, 559 F.3d 157, 163 (3d Cir.2009).

In his notice of appeal to the BIA, Pacheco raised only the IJ’s determination there was no relief from removal available to him and he was not then eligible for adjustment of status.2 In his brief submitted to the BIA, he explained the factual circumstances of the case, including that his daughter was in the custody of the New Jersey Division of Youth and Family Services and termination of parental right proceedings were ongoing. He then contended that the IJ abused his discretion by denying the continuance without providing additional opportunities to file for discretionary parole. Specifically, Pacheco argued he wished to file for relief based on “urgent humanitarian reasons” or on the basis that the parole would yield “significant public benefit,” see 8 U.S.C. § 1182(d)(5)(A); 8 C.F.R. § 212.5(b), but the government attorney denied the unfiled request without having the legal authority to do so.

Based on the notice of appeal and brief submitted to the BIA, Pacheco’s first contention, that his parental rights were not adequately considered in relation to his request for a continuance to file for discretionary parole, was exhausted below because his “application made the Board aware of what issues were being appealed.” Wu v. Ashcroft, 393 F.3d 418, 422 (3d Cir.2005). Reference to the conditions for discretionary parole combined with an explanation of Pacheco’s situation was sufficient to preserve the issue for appeal. Ac[143]*143cordingly, we have jurisdiction to reach this issue.

Conversely, Pacheco’s second corn tention, that his parental rights form a sufficient independent basis justifying a continuance even in the absence of available relief from removal, was not exhausted below. The notice of appeal and brief discuss only discretionary parole arguably available to Pacheco. He now contends that his parental rights at stake in the termination of parental rights proceedings are an “extraordinary circumstance” that may justify an open-ended grant of a continuance even in the absence of a pending visa petition. See Khan v. Att’y Gen.,

Related

Lin v. Attorney General of the United States
543 F.3d 114 (Third Circuit, 2008)
Hoxha v. Holder
559 F.3d 157 (Third Circuit, 2009)
Hashmi v. Attorney General of the United States
531 F.3d 256 (Third Circuit, 2008)
ARTHUR
20 I. & N. Dec. 475 (Board of Immigration Appeals, 2002)
GARCIA
16 I. & N. Dec. 653 (Board of Immigration Appeals, 1978)

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426 F. App'x 139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pacheco-v-attorney-general-of-the-united-states-ca3-2011.