Wacharapong Taweesuk v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 20, 2020
• Docket: 19-12648
• Status: Unpublished

Opinion

Case: 19-12648 Date Filed: 04/20/2020 Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-12648 Non-Argument Calendar ________________________

Agency No. A200-614-984

WACHARAPONG TAWEESUK,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

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

(April 20, 2020)

Before WILSON, MARTIN, and ROSENBAUM, Circuit Judges.

PER CURIAM: Case: 19-12648 Date Filed: 04/20/2020 Page: 2 of 6

Wacharapong Taweesuk, proceeding with counsel, petitions for review of

the Board of Immigration Appeals’ (BIA) order dismissing his appeal from an

immigration judge’s (IJ) order denying his application for cancellation of removal

and ordering him removed. He argues that the BIA’s interpretation of

§ 240A(b)(1)(C) of the Immigration and Nationality Act (INA), 8 U.S.C.

§ 1229b(b)(1)(C)—under which he was found ineligible for cancellation of

removal—is unreasonable, and thus not due deference under Chevron, U.S.A., Inc.

v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). For the following reasons, we

dismiss his petition.

Before addressing a petitioner’s arguments on the merits, we assess our

subject-matter jurisdiction de novo. Indrawati v. U.S. Att’y Gen., 779 F.3d 1284,

1297 (11th Cir. 2015). Our jurisdiction depends on whether the petitioner

exhausted his administrative remedies, which depends on whether he raised his

claim before the BIA. See id. We lack jurisdiction to address an issue not raised

before the BIA. Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th

Cir. 2006) (per curiam); see INA § 242(d)(1), 8 U.S.C. § 1252(d)(1). The

petitioner “must have previously argued the core issue now on appeal.” Indrawati,

779 F.3d at 1297 (internal quotation mark omitted). Further, where the BIA has

the power to review a claim and provide a remedy, exhaustion of that claim is

required before we can consider it. See Bing Quan Lin v. U.S. Att’y Gen., 881 F.3d

2 Case: 19-12648 Date Filed: 04/20/2020 Page: 3 of 6

860, 868 (11th Cir. 2018) (holding that a petitioner was required to exhaust his

claims because the BIA could have reviewed and remedied them).

The exhaustion requirement “allows the BIA to consider the niceties and

contours of the relevant arguments, thereby fully considering the petitioner’s

claims and compiling a record which is adequate for judicial review.”

Amaya-Artunduaga, 463 F.3d at 1250 (alterations adopted) (internal quotation

marks omitted). Where the BIA addressed an issue sua sponte that a petitioner had

not raised, we held that we nevertheless lacked jurisdiction to review that claim

because we could not say that the BIA “fully considered the petitioner’s claims, as

it had no occasion to address the relevant arguments with respect to the issue it

reviewed, nor can we say there is any record, let alone an adequate record, of how

the administrative agency handled the claim in light of the arguments

presented.” Id. at 1251.

Here, we lack jurisdiction to review Taweesuk’s claim because the BIA had

the power to remedy his claim but Taweesuk did not adequately raise it before the

BIA in the first instance. Taweesuk’s claim turns on the BIA’s interpretation of an

immigration statute, INA § 240A(b)(1)(C), as described in Matter of Cortez

Canales, 25 I. & N. Dec. 301 (B.I.A. 2010). He claims that the BIA’s current

interpretation is unreasonable.

3 Case: 19-12648 Date Filed: 04/20/2020 Page: 4 of 6

Not only does the BIA have the power to revisit its interpretations, it “must

consider varying interpretations and the wisdom of its policy on a continuing

basis.” See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S.

967, 981 (2005). In other words, because the BIA could remedy Taweesuk’s

claim, he was required to exhaust it there. See Bing Quan Lin, 881 F.3d at 868.

But he did not. In his notice of appeal to the BIA, in the first paragraph, he

cited INA § 240A(b)(1)(C) and Matter of Cortez Canales. In the second

paragraph, in one sentence, he offered his interpretation: “‘an offense under section

212(a), 237(a)(2), or 237(a)(3)’ means exactly what it says in that to be ‘an offense

under section 212(a), 237(a)(2), or 237(a)(3),’ the alien must have been convicted

of ‘an offense’ as precisely described in each of these sections.” Then he disagreed

with the existing interpretation: “§ 240A(b)(1)(C) cannot be read to be ‘an offense

described in’ each of the referenced sections as explained in Matter of Ortega

Lopez and Matter of Cortez.” In the third paragraph, in one sentence, he mentions

the consequence to him of “the Court’s reading of § 240A(b)(1)(C).” Finally, he

reserved a right to brief additional arguments.

This is inadequate; at best, his statements amount to unsupported assertions,

not arguments. To start, only one word seems to separate Taweesuk’s preferred

interpretation from the BIA’s: “precisely.” Taweesuk did not elaborate on how or

why that one word is the difference between their interpretations, and he did not

4 Case: 19-12648 Date Filed: 04/20/2020 Page: 5 of 6

otherwise explain how his interpretation differs from the BIA’s in Matter of Cortez

Canales. He did not explain why “§ 240A(b)(1)(C) cannot be read” as the BIA

reads it in Matter of Cortez Canales. To the extent he asserts in the second

paragraph that Matter of Cortez Canales was wrongly decided, he did not explain

why or grapple with its reasoning.

As for the third paragraph, in which he alludes to his own circumstances, it

is unclear whether he was challenging the IJ’s application of Matter of Cortez

Canales because of his reference to “the Court’s reading,” or instead the BIA’s

framework in Matter of Cortez Canales. Even assuming he was challenging

Matter of Cortez Canales directly, he did not explain why his circumstances

rendered the BIA’s interpretation unreasonable or otherwise engage with the BIA’s

reasoning for its current interpretation.

Taweesuk’s BIA brief makes his failure to exhaust the issue even more

apparent, if not explicitly admitted. There he did not argue that Matter of Cortez

Canales was wrongly decided. In fact, his only argument seemed to assume that

Matter of Cortez Canales offered the proper framework and to take issue only with

the IJ’s application of that case. And he even “specifically reserve[d] his right to

challenge the agency’s interpretation of the statute in question in [Matter of Cortez

Canales]” before us, suggesting that he intentionally did not argue it. His

assumption that the BIA would stick with its current interpretation does not excuse

5 Case: 19-12648 Date Filed: 04/20/2020 Page: 6 of 6

his failure to exhaust. Finally, his citation to Chevron does not amount to an

argument about why he thinks the BIA’s interpretation is unreasonable.

In short, there were no “niceties and contours” of Taweesuk’s claim for the

BIA to consider; it did not fully consider his claim and compile an adequate record

for us to review. See Amaya-Artunduaga, 463 F.3d at 1250–51. Indeed, the BIA’s

order does not address whether Matter of Cortez Canales was correctly decided,

which also indicates that the BIA did not understand Taweesuk to be challenging

its existing interpretation of the statute. In any event, even if the BIA had analyzed

this statutory-interpretation issue, it essentially would have done so sua sponte

given the bare nature of Taweesuk’s assertions, which would not have exhausted

that issue. See id. at 1251.

In conclusion, Taweesuk failed to administratively exhaust his claim. He

did not previously argue “the core issue”—the BIA’s interpretation of INA

§ 240A(b)(1)(C) in Matter of Cortez Canales—that he now argues in his petition

for review. See Indrawati, 779 F.3d at 1297. Because the BIA could have

reassessed its prior interpretation, Taweesuk had an obligation to raise the issue

before the BIA. But he did not, and accordingly, we lack jurisdiction to review

that claim.

PETITION DISMISSED.