FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 4, 2021 _________________________________ Christopher M. Wolpert Clerk of Court MIGUEL ANGEL VERGARA- CARRETO, a/k/a Miguel Vergara,
Petitioner,
v. No. 20-9519 (Petition for Review) ROBERT M. WILKINSON, Acting United States Attorney General, *
Respondent. _________________________________
ORDER AND JUDGMENT ** _________________________________
Before HARTZ, KELLY, and EID, Circuit Judges. _________________________________
Miguel Vergara-Carreto is a native and citizen of Mexico. The Board of
Immigration Appeals (BIA) affirmed the denial by an immigration judge (IJ) of his
* On January 20, 2021, Robert M. Wilkinson became Acting Attorney General of the United States. Consequently, his name has been substituted for William P. Barr as Respondent, per Fed. R. App. P. 43(c)(2). ** After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. application for cancellation of removal under 8 U.S.C. § 1229b(b)(1) and dismissed
his appeal.
In the briefs on his petition for review by this court, Mr. Vergara-Carreto
argues that the IJ acted as a partisan adjudicator, thereby denying him due process;
that the IJ and BIA treated his claim of hardship differently from that of similarly
situated persons, violating his right to equal protection; and that the BIA failed to
consider all relevant evidence in connection with his claim of exceptional and
extremely unusual hardship, violating due process. But Mr. Vergara-Carreto did not
exhaust his “partisan adjudicator” argument before the BIA, and his remaining
arguments ignore the independently dispositive finding of the IJ that he lacked the
requisite good moral character to qualify for cancellation of removal. Exercising
jurisdiction under 8 U.S.C. § 1252(a), we dismiss the petition for review in part and
deny it in part.
I. BACKGROUND
Mr. Vergara-Carreto entered the United States in 1992 and has remained in the
country continuously since then, save for a less-than-one-month absence in 2004
when he briefly visited Mexico. He is married and lived with his wife and three of
his U.S.-citizen children who were aged 13, 12, and 4 at the time the IJ entered its
decision. The Department of Homeland Security issued him a Notice to Appear,
charging him with removability under § 212(a)(6)(A)(i) of the Immigration and
Nationality Act (INA), 8 U.S.C. § 1182(a)(6)(A)(i). He conceded removability but
applied for cancellation of removal under 8 U.S.C. § 1229b(b)(1).
2 To be eligible for a discretionary grant of cancellation under § 1229b(b)(1), an
alien must establish four elements: (1) continuous physical presence in the United
States for at least ten years before the application, (2) good moral character during
the same period, (3) no convictions for certain crimes specified elsewhere in the INA,
and (4) “that removal would result in exceptional and extremely unusual hardship to
the alien’s spouse, parent, or child, who is a citizen of the United States or an alien
lawfully admitted for permanent residence.” 8 U.S.C. § 1229b(b)(1)(A)–(D). The
failure to establish one element precludes eligibility for relief under this section.
After an evidentiary hearing the IJ denied Mr. Vergara-Carreto’s application
for cancellation of removal on two grounds. First, he found that Mr. Vergara-Carreto
did not meet his burden of establishing he had been a person of good moral character
for the ten years preceding his application. See 8 U.S.C. § 1229b(b)(1)(B). Second,
he found that, although Mr. Vergara-Carreto’s removal would require his children to
relocate to Mexico and that such relocation would result in hardship, Mr. Vergara-
Carreto did not demonstrate that the resulting hardship would be exceptional and
extremely unusual. See id. §1229b(b)(1)(D).
Mr. Vergara-Carreto appealed to the BIA. The BIA “adopt[ed] and affirm[ed]
the [IJ]’s . . . decision denying [Mr. Vergara-Carreto]’s application for cancellation
of removal, for the reasons stated therein with the following notations.” R. at 3. The
additional notations in the BIA’s opinion expounded upon the IJ’s findings that Mr.
Vergara-Carreto failed to demonstrate exceptional and extremely unusual hardship.
Mr. Vergara-Carreto thereafter filed a petition for review with this court.
3 II. ANALYSIS
A. Standard of Review
“[W]e review the BIA’s decision[, which was issued under 8 C.F.R.
§ 1003.1(e)(5),] as the final agency determination and limit our review to issues
specifically addressed therein.” Diallo v. Gonzales, 447 F.3d 1274, 1279 (10th Cir.
2006). But “when seeking to understand the grounds provided by the BIA, we are
not precluded from consulting the IJ’s more complete explanation of those same
grounds.” Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006). “This is
especially appropriate where,” as in this case, “the BIA incorporates by reference the
IJ’s rationale.” Id.
Subject to exceptions not applicable here, we lack jurisdiction to consider
arguments that Mr. Vergara-Carreto did not first exhaust before the BIA. See 8
U.S.C. § 1252(d)(1); Martinez-Perez v. Barr, 947 F.3d 1273, 1282 (10th Cir. 2020).
“[A]n alien must present the same specific legal theory to the BIA before he or she
may advance it in court.” Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237 (10th Cir.
2010). “It is not enough . . . to make general statements in the notice of appeal to the
BIA, or to level broad assertions in a filing before the Board.” Id. (internal quotation
marks omitted). “[O]bjections to procedural errors or defects that the BIA could
have remedied must be exhausted even if the alien later attempts to frame them in
terms of constitutional due process on judicial review.” Vicente-Elias v. Mukasey,
Free access — add to your briefcase to read the full text and ask questions with AI
FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 4, 2021 _________________________________ Christopher M. Wolpert Clerk of Court MIGUEL ANGEL VERGARA- CARRETO, a/k/a Miguel Vergara,
Petitioner,
v. No. 20-9519 (Petition for Review) ROBERT M. WILKINSON, Acting United States Attorney General, *
Respondent. _________________________________
ORDER AND JUDGMENT ** _________________________________
Before HARTZ, KELLY, and EID, Circuit Judges. _________________________________
Miguel Vergara-Carreto is a native and citizen of Mexico. The Board of
Immigration Appeals (BIA) affirmed the denial by an immigration judge (IJ) of his
* On January 20, 2021, Robert M. Wilkinson became Acting Attorney General of the United States. Consequently, his name has been substituted for William P. Barr as Respondent, per Fed. R. App. P. 43(c)(2). ** After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. application for cancellation of removal under 8 U.S.C. § 1229b(b)(1) and dismissed
his appeal.
In the briefs on his petition for review by this court, Mr. Vergara-Carreto
argues that the IJ acted as a partisan adjudicator, thereby denying him due process;
that the IJ and BIA treated his claim of hardship differently from that of similarly
situated persons, violating his right to equal protection; and that the BIA failed to
consider all relevant evidence in connection with his claim of exceptional and
extremely unusual hardship, violating due process. But Mr. Vergara-Carreto did not
exhaust his “partisan adjudicator” argument before the BIA, and his remaining
arguments ignore the independently dispositive finding of the IJ that he lacked the
requisite good moral character to qualify for cancellation of removal. Exercising
jurisdiction under 8 U.S.C. § 1252(a), we dismiss the petition for review in part and
deny it in part.
I. BACKGROUND
Mr. Vergara-Carreto entered the United States in 1992 and has remained in the
country continuously since then, save for a less-than-one-month absence in 2004
when he briefly visited Mexico. He is married and lived with his wife and three of
his U.S.-citizen children who were aged 13, 12, and 4 at the time the IJ entered its
decision. The Department of Homeland Security issued him a Notice to Appear,
charging him with removability under § 212(a)(6)(A)(i) of the Immigration and
Nationality Act (INA), 8 U.S.C. § 1182(a)(6)(A)(i). He conceded removability but
applied for cancellation of removal under 8 U.S.C. § 1229b(b)(1).
2 To be eligible for a discretionary grant of cancellation under § 1229b(b)(1), an
alien must establish four elements: (1) continuous physical presence in the United
States for at least ten years before the application, (2) good moral character during
the same period, (3) no convictions for certain crimes specified elsewhere in the INA,
and (4) “that removal would result in exceptional and extremely unusual hardship to
the alien’s spouse, parent, or child, who is a citizen of the United States or an alien
lawfully admitted for permanent residence.” 8 U.S.C. § 1229b(b)(1)(A)–(D). The
failure to establish one element precludes eligibility for relief under this section.
After an evidentiary hearing the IJ denied Mr. Vergara-Carreto’s application
for cancellation of removal on two grounds. First, he found that Mr. Vergara-Carreto
did not meet his burden of establishing he had been a person of good moral character
for the ten years preceding his application. See 8 U.S.C. § 1229b(b)(1)(B). Second,
he found that, although Mr. Vergara-Carreto’s removal would require his children to
relocate to Mexico and that such relocation would result in hardship, Mr. Vergara-
Carreto did not demonstrate that the resulting hardship would be exceptional and
extremely unusual. See id. §1229b(b)(1)(D).
Mr. Vergara-Carreto appealed to the BIA. The BIA “adopt[ed] and affirm[ed]
the [IJ]’s . . . decision denying [Mr. Vergara-Carreto]’s application for cancellation
of removal, for the reasons stated therein with the following notations.” R. at 3. The
additional notations in the BIA’s opinion expounded upon the IJ’s findings that Mr.
Vergara-Carreto failed to demonstrate exceptional and extremely unusual hardship.
Mr. Vergara-Carreto thereafter filed a petition for review with this court.
3 II. ANALYSIS
A. Standard of Review
“[W]e review the BIA’s decision[, which was issued under 8 C.F.R.
§ 1003.1(e)(5),] as the final agency determination and limit our review to issues
specifically addressed therein.” Diallo v. Gonzales, 447 F.3d 1274, 1279 (10th Cir.
2006). But “when seeking to understand the grounds provided by the BIA, we are
not precluded from consulting the IJ’s more complete explanation of those same
grounds.” Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006). “This is
especially appropriate where,” as in this case, “the BIA incorporates by reference the
IJ’s rationale.” Id.
Subject to exceptions not applicable here, we lack jurisdiction to consider
arguments that Mr. Vergara-Carreto did not first exhaust before the BIA. See 8
U.S.C. § 1252(d)(1); Martinez-Perez v. Barr, 947 F.3d 1273, 1282 (10th Cir. 2020).
“[A]n alien must present the same specific legal theory to the BIA before he or she
may advance it in court.” Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237 (10th Cir.
2010). “It is not enough . . . to make general statements in the notice of appeal to the
BIA, or to level broad assertions in a filing before the Board.” Id. (internal quotation
marks omitted). “[O]bjections to procedural errors or defects that the BIA could
have remedied must be exhausted even if the alien later attempts to frame them in
terms of constitutional due process on judicial review.” Vicente-Elias v. Mukasey,
532 F.3d 1086, 1094 (10th Cir. 2008).
4 B. Partisan Adjudicator
Mr. Vergara-Carreto argues the IJ acted as a partisan adjudicator, rather than a
neutral factfinder, thereby denying him due process. But he did not raise this issue in
his appeal to the BIA. See, e.g., R. at 14 (summary of the argument in BIA brief,
stating “The only two questions on appeal is [sic] whether the Respondent’s removal
will cause an exceptional and extremely unusual hardship and whether the
Immigration Judge erred in finding that Mr. Vergara did not have ‘good moral
character’”). We therefore lack jurisdiction to consider it. See 8 U.S.C.
§ 1252(d)(1); Garcia-Carbajal, 625 F.3d at 1237.
C. Independently Dispositive Conclusion of the IJ
Mr. Vergara-Carreto’s remaining challenges in his petition for review all concern
the findings the IJ made in connection with his conclusion that Mr. Vergara-Carreto had
not shown exceptional and extremely unusual hardship to his children from his removal.
He argues that this court can review those challenges as a mixed question of law and fact
under Guerrero-Lasprilla v. Barr, __ U.S. __, 140 S. Ct. 1062 (2020), that he has an
equal-protection claim based on the different treatment of his circumstance from that of
other similarly situated persons, and that the BIA violated his due-process rights by
failing to adequately consider all relevant evidence in connection with the hardship issue.
These arguments, however, ignore the independently dispositive finding of the IJ,
which the BIA “adopt[ed] and affirm[ed],” R. at 3, that Mr. Vergara-Carreto was not
eligible for cancellation of removal because he did not make the requisite showing of
good moral character. Because Mr. Vergara-Carreto does not address the issue in his
5 opening brief, he has waived any challenge to this determination. See Sawyers v.
Norton, 962 F.3d 1270, 1286 (10th Cir. 2020) (“Issues not raised in the opening brief
are deemed abandoned or waived . . . [, as are] arguments that are inadequately
presented . . . .” (internal quotation marks omitted)). Even if we were to reverse the
IJ’s determination on hardship, Mr. Vergara-Carreto would still be ineligible for
cancellation of removal based on the agency’s finding of lack of moral character. We
therefore deny the petition for review.
III. CONCLUSION
We DISMISS the petition for review to the extent it argues the IJ acted as a
partisan adjudicator and violated Petitioner’s due-process rights. In all other
respects, we DENY the petition for review.
Entered for the Court
Harris L Hartz Circuit Judge