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Exhaustion of Administrative Remedies to Preserve Jurisdiction

No Jurisdiction For Appellate Review of an Issue Exists if The BIA Was Not Given an Opportunity to Consider it And Did Not Actually Consider it.
 

On March 3, 2022, the Fifth Circuit Court of Appeal published a decision in which it attempted to clarify its application of section 242(d)(1) of the Immigration and Nationality Act, as amended (“the Act”) which requires exhaustion of all administrative remedies before a court may review a final order of removal from the United States.  Sonia Maritzel Martinez-Guevara v. Merrick Garland, (5th Cir. March 3, 2022) No. 20-60624.

The procedural history, facts of record, holding and rationale in Sonia Maritzel Martinez-Guevara v. Merrick Garland, (5th Cir. March 3, 2022) No. 20-60624 are as follows:

 

Case History

Approximately in 2006, an Immigration Judge ordered the Petitioner removed in absentia.

The Petitioner moved to reopen her removal proceedings and rescind her in absentia removal order approximately in 2019.

The Immigration Judge denied her motion to reopen, and she appealed to the Board of Immigration Appeals (“BIA”), which dismissed her appeal.

Instead of asking the BIA to reconsider its decision, the Petitioner filed a petition for review.

 

Facts

In 2006, the Petitioner is a native and citizen of El Salvador who entered the United States without permission.

Although she was immediately apprehended, Border Patrol released the Petitioner with instructions to appear before an immigration court in Harlingen, Texas.

The Petitioner did not appear in immigration court.  Therefore, an Immigration Judge ordered her removal from the United States in the Petitioner’s absence.

Thirteen years later, the Petitioner moved to reopen her removal proceedings to seek asylum and related relief.

In her motion to reopen, the Petitioner alleged that “systematic” activity targeting the families of police officers caused a material change in circumstances in El Salvador that justifies her persecution claims, because two of her family members are police officers in El Salvador.

The Immigration Judge denied the Petitioner’s motion as untimely under section 240(c)(7)(C)(i) of the Act which requires motions to reopen to be filed within 90 days of the entry of a final administrative order.

The Immigration Judge acknowledged that the petitioner had evidenced attacks on police officers’ relatives and threats against her family.  The Immigration Judge, however, concluded, citing Singh v. Lynch, 840 F.3d 220 (5th Cir. 2016) (per curiam), that the Petitioner did not “meet the heavy burden [she] must overcome to show changed country conditions” that would justify an exception to the 90 day deadline under section 240(c)(7)(C)(i) of the Act.

The Petitioner appealed to the BIA emphasizing evidence from the two Salvadoran officials that gangs had coordinated recent attacks.

Nevertheless, the BIA affirmed the Immigration Judge’s decision and dismissed her appeal.  In doing so, the BIA specifically reasoned that the Petitioner had shown, at most, an “incremental increase in violence in El Salvador since 2006.”

Instead of asking the BIA to reconsider, the Petitioner filed a petition for review.

 

Held

Failure of the Petitioner to file a motion to reconsider with the BIA did not deprive the Fifth Circuit Court of Appeal of jurisdiction.

Petition Denied on its merits

 

Rationale

The Petitioner based her petition for review on two grounds:

  1. The Board abused its discretion by not discussing two of the news articles she offered as evidence.
  2. The Board misapplied Singh v. Lynch, 840 F.3d 220 (5th Cir. 2016) (per curiam).  In particular, that:
    • in Singh v. Lynch, the petitioner and his family had endured “isolated” threats of violence whereas her evidence showed a “systematic strategy of targeting” police officers’ relatives, and that this strategy had materially altered conditions in El Salvador.

The Fifth Circuit Court of Appeal acknowledged its jurisdiction in the absence of a motion to reconsider filed with the BIA and justified denial of the petition for review as follows.

JURISDICTION

  • A petitioner exhausts a claim by presenting it to the BIA either on appeal or on a motion to reconsider. Thus, a motion to reconsider is not “generally required” to exhaust.  Omari v. Holder, 562 F.3d 314, at 320 (5th Cir. 2009).
  • A motion to reconsider is necessary for jurisdiction only when the BIA’s decision “itself results in a new issue and the [Board] has an available and adequate means for addressing” it.  Omari v. Holder, at 320.
  • A new issue is one that “neither party could have possibly raised” before the Board’s decision. Omari v. Holder, at 320–21.
  • to classify a claim as exhausted under section 242(d)(1) of the Act, the Fifth Circuit Court of Appeal asks whether the BIA had a chance to consider it. The Board need not actually decide or consider the issue; what matters is whether the petitioner presented it.
  • The Petitioner presented two claims. First, that the BIA abused its discretion by not discussing two of the articles she offered as evidence and Second, that the Board “erred by misapplying” Singh, which she says is not like her case.
  • The Petitioner gave the BIA a chance to consider each claim. Therefore, the Petitioner exhausted her claims and jurisdiction for appellate review exists.

 

Merits

  • The BIA enjoys vast discretion when it denies motions to reopen. An appellate court must deny a petition for review unless the BIA’s decision is entirely capricious, irrational, or unfounded.  Gomez-Palacios v. Holder, 560 F.3d 354, at 358 (5th Cir. 2009).  The BIA may not ignore critical evidence or draw absurd conclusions from it. See, e.g., Abdel-Masieh v. INS, 73 F.3d 579, at 584–85 (5th Cir. 1996).  Anything short of that must stand.
  • The BIA is required only to “consider the issues raised and announce its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted.” Efe v. Ashcroft, 293 F.3d 899, at 908 (5th Cir. 2002).  The BIA need not acknowledge every piece of evidence that a petitioner presents. See Efe v. Ashcroft. (“The Board does not have to write an exegesis on every contention.”).  It need only show that it considered the petitioner’s claim, supported its view with some evidence, and did not ignore facts that would render its decision entirely unreasonable.
  • The BIA easily satisfied the low bar described above by acknowledging the evidence and weighing it carefully.
  • The BIA observed that the Petitioner had not linked the attacks described in the news articles to a national trend.
  • The BIA did not need specifically to refute the two Salvadoran officials’ belief that the violence arose from a coordinated gang campaign.
  • The BIA could and did conclude that the evidence showed too little violence (gang-coordinated or not) to prove a material change in country conditions.
  • The BIA did not err applying Singh.  Like Singh, the Petitioner presented compelling evidence of a personal change in circumstances.  To obtain relief, however, she also must show a dramatic nationwide change. From her scattered anecdotal evidence, the BIA concluded that she did not meet that heavy burden.  That conclusion was neither irrational nor unsupported.


Commentary

To establish a foundation for appellate court jurisdiction by first exhausting administrative remedies according to section 242(d)(1) of the Act, a petitioner must sometimes raise the issue in a motion for reconsideration.  See Avelar-Oliva v. Barr, 954 F.3d 757, at 766 (5th Cir. 2020) (“Avelar-Oliva’s contention that the BIA misapplied the standard of review should have been presented to the BIA in a motion for reconsideration.”).

In Sonia Maritzel Martinez-Guevara v. Garland (March 3, 2022) No. 20-60624, the Fifth Circuit Court of Appeal provides guidance about how it applies section 242(d)(1) of the Act.

The fundamental jurisdictional question that the Fifth Circuit Court of Appeal asks is whether the BIA was given a chance to consider the issue presented for appellate review.

Also, whether or not an issue is presented by the petitioner, if the BIA spontaneously considers the issue or the BIA considers an issue raised by the government the issue is exhausted and the appellate court has jurisdiction to review it.

No jurisdiction for appellate review of an issue exists if the BIA was not given an opportunity to consider it and did not actually consider it.

The following summary might provide clarity.

 

Jurisdiction (based on exhaustion of administrative remedies) exists if:

The petitioner “raised, presented, or mentioned” the direct predicate of the BIA’s error to the BIA.  Vazquez v. Sessions, 885 F.3d 862, at 868 (5th Cir. 2018) (e.g. the BIA wrongly weighed the evidence or misapplied the law) so long as the petitioner had raised the same issue to the BIA on appeal from the Immigration Judge.  See, also, Dale v. Holder, 610 F.3d 294, at 300 (5th Cir. 2010).
 

Jurisdiction (based on exhaustion of administrative remedies) does not exist if:

The petitioner alleges a new defect that the BIA “never had a chance to consider.” Avelar-Oliva v. Barr, 954 F.3d 757, at 766 (5th Cir. 2020) (e.g. claims that the Board “engaged in impermissible factfinding,” Omari v. Holder, 562 F.3d 314, at 321 (5th Cir. 2009); applied the wrong standard of review Avelar-Oliva, 954 F.3d 757, at 766 (5th Cir. 2020); or the BIA’s ruling on a properly presented issue breached a procedural requirement or the petitioner’s due process rights, Roy v. Ashcroft, 389 F.3d 132, at 137 (5th Cir. 2004) (per curiam) (“Procedural error correctable by the Board . . . properly subject to the exhaustion requirement”)) belong to this unreviewable class.


An issue that has not been exhausted requires a motion to reconsider timely filed at the BIA to establish appellate jurisdiction in the Fifth Circuit Court of Appeal.

As the best practice for preserving jurisdiction for appellate review, if the BIA does not address all of the issues raised in an appeal to the BIA (or when in doubt) a motion to reconsider should be timely filed within 30 days of the date of entry of a final administrative order of removal.  See section 240(c)(6)(C) of the Act; 8 C.F.R. § 1003.23(b)(1).

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