RAMIREZ PUEBLA v. GARLAND (2021)

ORDER AND JUDGMENT *

Adolfo Ramirez-Puebla, a native and citizen of Mexico, unsuccessfully sought cancellation of removal. The immigration judge concluded that he failed to show his removal would create an “exceptional and extremely unusual hardship” for his United States-citizen son, as required by 8 U.S.C. § 1229b(b)(1)(D), and the Board of Immigration Appeals (Board) affirmed. Mr. Ramirez-Puebla now petitions for review of the Board's decision, raising a single argument in his opening brief. We dismiss the petition for lack of jurisdiction, however, because he did not first present that argument to the Board.

Under 8 U.S.C. § 1252(a)(2)(B)(i), this court lacks “jurisdiction to review the discretionary aspects of a decision concerning cancellation of removal” including “the determination of whether the petitioner's removal from the United States would result in exceptional and extremely unusual hardship to a qualifying relative.” Galeano-Romero v. Barr, 968 F.3d 1176, 1181 (10th Cir. 2020) (internal quotation marks omitted). Nevertheless, under § 1252(a)(2)(D), we retain jurisdiction to review “constitutional claims” and “questions of law.”

Attempting to avoid the § 1252(a)(2)(B)(i) jurisdictional bar, Mr. Ramirez-Puebla argues that, as a matter of law, the Board should in every cancellation case evaluate every hardship factor that it has considered in its precedential decisions. He asserts that this argument addresses the proper legal framework for assessing hardship claims, and thus it qualifies as a “question of law” we have jurisdiction to review.¹

In making this argument, however, he ignores another jurisdictional hurdle—the requirement that he exhaust his arguments before bringing them to this court. See 8 U.S.C. § 1252(d)(1) (“A court may review a final order of removal only if ․ the alien has exhausted all administrative remedies available to the alien as of right[.]”); Galeano-Romero, 968 F.3d at 1180 n.3 (recognizing when a petitioner “fail[s] to present [an] argument to the [immigration judge] or Board, it is unexhausted, and we lack jurisdiction to consider it”). Mr. Ramirez-Puebla did not argue before the Board that the agency must, in every cancellation case, consider every hardship factor that the Board's precedential decisions have identified. Rather, he identified specific hardship factors and argued that the Board should conclude, based on those factors, that he satisfied the hardship requirement. Exhaustion requires “an alien [to] present the same specific legal theory to the [Board] before he or she may advance it in court.” Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237 (10th Cir. 2010). Because Mr. Ramirez-Puebla did not present his current argument to the Board, we lack jurisdiction to consider it.

The petition for review is dismissed for lack of jurisdiction.

FOOTNOTES

1.   In his reply brief, Mr. Ramirez-Puebla argues for the first time that this court should overrule Galeano-Romero and review the Board's hardship determination under Guerrero-Lasprilla v. Barr, ––– U.S. ––––, 140 S. Ct. 1062, 206 L.Ed.2d 271 (2020). But “[t]he general rule in this circuit is that a party waives issues and arguments raised for the first time in a reply brief.” Reedy v. Werholtz, 660 F.3d 1270, 1274 (10th Cir. 2011) (internal quotation marks omitted). “We see no reason to depart from that rule here.” Id.

Carolyn B. McHugh, Circuit Judge