Zacarias-Garcia v. Garland

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 8, 2021
• Docket: 20-9654
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT July 8, 2021 _________________________________ Christopher M. Wolpert Clerk of Court JOSE ALFREDO ZACARIAS-GARCIA,

Petitioner,

v. No. 20-9654 (Petition for Review) MERRICK B. GARLAND, United States Attorney General,

Respondent. _________________________________

ORDER AND JUDGMENT* _________________________________

Before HARTZ, KELLY, and McHUGH, Circuit Judges.** _________________________________

Petitioner Jose Alfredo Zacarias-Garcia seeks review of the Board of

Immigration Appeals’ (BIA) dismissal of his appeal after an immigration judge (IJ)

denied his application for cancellation of removal. Mr. Zacarias-Garcia argues that

he was denied due process because his merits hearing before the IJ was not properly

transcribed. Assessing our jurisdiction under 8 U.S.C. § 1252, we dismiss the

petition because Mr. Zacarias-Garcia failed to exhaust his arguments before the BIA.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. ** After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Background

Mr. Zacarias-Garcia, a native and citizen of Mexico, entered the United States

illegally in 1999. In 2011, he was served with a notice to appear in immigration

court and charged with being removable. Mr. Zacarias-Garcia conceded removability

but filed an application for cancellation of removal. A hearing was conducted on

May 21, 2018, during which Mr. Zacarias-Garcia was the sole witness. He testified

about, among other things, entering the country, raising two children with his wife,

purchasing a home, and his employment history. The IJ ultimately denied the

application for cancellation of removal because Mr. Zacarias-Garcia failed to

establish that his removal would result in “exceptional and extremely unusual

hardship” for his two children. A.R. 29–36; see 8 U.S.C. § 1229b(b)(1)(D). The IJ

granted Mr. Zacarias-Garcia’s request for voluntary departure.

Mr. Zacarias-Garcia filed a notice of appeal with the BIA stating that the IJ

“wrongly decided” his case and did not properly consider the evidence regarding the

hardships that his children would face. A.R. 24. On December 2, 2020, the BIA

dismissed the appeal and ordered Mr. Zacarias-Garcia removed. The BIA stated that

he did not show the requisite hardship and that the IJ properly considered the

evidence. Additionally, the BIA noted that he failed to file a brief and that his notice

of appeal did not “meaningfully challenge the [IJ]’s findings of fact or conclusions of

law.” Id. at 3. Mr. Zacarias-Garcia filed a petition for review in this court.

2 Discussion

Mr. Zacarias-Garcia argues that he has been denied due process because his

merits hearing was not transcribed. Not only does it appear that the hearing was

transcribed, see id. at 97–131,1 but Mr. Zacarias-Garcia did not exhaust this argument

before the BIA. His notice of appeal only argued that the IJ did not adequately

consider the evidence in reaching its conclusion and did not mention any issues

regarding the hearing transcript. See id. at 24. We therefore lack jurisdiction to

consider his argument because “an 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); see 8 U.S.C. § 1252(d)(1). This is true even

though Mr. Zacarias-Garcia attempts to frame his argument “in terms of

constitutional due process” because the BIA could have remedied such a problem.

See Vicente-Elias v. Mukasey, 532 F.3d 1086, 1094 (10th Cir. 2008). Thus, his

petition for review must be dismissed as to that argument.

Mr. Zacarias-Garcia raised no other arguments in his opening brief, but in his

reply contends that he was wrongfully denied cancellation of removal based on the

facts of the case. Although this argument is consistent with his arguments before the

BIA, it also fails to establish jurisdiction here. First, this court ordinarily will not

consider arguments “raised for the first time in a reply brief.” McKenzie v. U.S.

Citizenship and Immigr. Servs., 761 F.3d 1149, 1154–55 (10th Cir. 2014). And

1 Mr. Zacarias-Garcia acknowledges that the hearing was transcribed in his reply brief. See Reply Br. at 4. 3 second, we lack jurisdiction over “the determination of whether the petitioner’s

removal from the United States ‘would result in exceptional and extremely unusual

hardship’ to a qualifying relative under 8 U.S.C. § 1229b(b)(1)(D).” Galeano-

Romero v. Barr, 968 F.3d 1176, 1181 (10th Cir. 2020) (citation omitted); see also id.

at 1182–84 (discussing how discretionary determinations do not raise “questions of

law” that are subject to review).

Accordingly, the petition for review is DISMISSED for lack of jurisdiction,

and the Respondent’s motion to dismiss is GRANTED.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge