Alain Cuevas-Nuno v. William Barr
969 F.3d 331
6th Cir.2020Background
- Cuevas-Nuno, a Mexican national, was charged in 2012 as present in the U.S. without admission and conceded removability after an initial master calendar hearing.
- He applied for cancellation of removal and had his case transferred to the Memphis Immigration Court; a master calendar hearing was scheduled for October 4, 2017.
- Cuevas-Nuno missed the October 4 hearing; the IJ proceeded in absentia, deemed his cancellation application abandoned, and ordered removal to Mexico.
- Sixteen days later he moved to reopen, claiming in an affidavit he became confused about the hearing date; he did not attach his cancellation application or other proof of eligibility.
- The IJ denied reopening, treating the claim under the statute’s "exceptional circumstances" standard and for failure to file evidentiary support; the BIA affirmed without opinion after Cuevas-Nuno’s BIA brief argued only that an "exceptional situation" warranted sua sponte reopening.
- The Sixth Circuit dismissed Cuevas-Nuno’s petition for review for lack of jurisdiction because he failed to exhaust administrative remedies on the statutory issues he now advances.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel’s employee giving a wrong hearing date qualifies as "exceptional circumstances" under 8 U.S.C. § 1229a(b)(5)(C)(i) to reopen an in absentia order | Cuevas-Nuno: the incorrect date constituted an exceptional circumstance justifying statutory reopening | Gov: petitioner failed to present this statutory claim to the BIA; he only argued an "exceptional situation" for sua sponte reopening | Dismissed for lack of jurisdiction; claim not exhausted before the BIA |
| Whether lack of notice under 8 U.S.C. § 1229a(b)(5)(C)(ii) justifies reopening | Cuevas-Nuno: he lacked effective notice because of counsel’s employee’s error | Gov: petitioner never raised lack-of-notice argument to the BIA | Dismissed for lack of jurisdiction; claim not exhausted |
| Whether denial violated due process (right to be heard) | Cuevas-Nuno: missing hearing because of counsel error violated due process | Gov: procedural default—issue not raised to the BIA | Dismissed for lack of jurisdiction; claim not exhausted |
| Whether IJ erred in denying reopening for failure to submit evidence of cancellation eligibility under 8 C.F.R. § 1003.2(c)(1) | Cuevas-Nuno: IJ improperly denied without consideration of merits | Gov: petitioner didn’t move to reopen to submit the application and didn’t exhaust that argument before the BIA | Dismissed for lack of jurisdiction; claim not exhausted |
Key Cases Cited
- Ramani v. Ashcroft, 378 F.3d 554 (6th Cir. 2004) (explaining strict administrative-issue exhaustion for removal-review jurisdiction)
- Hassan v. Gonzales, 403 F.3d 429 (6th Cir. 2005) (BIA brief controls which issues are preserved)
- Acquaah v. Holder, 589 F.3d 332 (6th Cir. 2009) (addressing relief following in absentia removal proceedings)
- Gor v. Holder, 607 F.3d 180 (6th Cir. 2010) (presenting an issue in a sua sponte motion can exhaust that issue)
- Rais v. Holder, 768 F.3d 453 (6th Cir. 2014) (no review of BIA decision declining to sua sponte reopen)
- Denko v. INS, 351 F.3d 717 (6th Cir. 2003) (summary affirmance implies BIA found IJ’s result supported)
- Pilica v. Ashcroft, 388 F.3d 941 (6th Cir. 2004) (presumption that BIA applied correct standard absent contrary evidence)
- Island Creek Coal Co. v. Bryan, 937 F.3d 738 (6th Cir. 2019) (regulatory requirements can create issue-exhaustion obligations)
- Bonilla v. Lynch, 840 F.3d 575 (9th Cir. 2016) (distinguishing judicially created "exceptional situation" from statutory "exceptional circumstances")