Garcia-Carbajal v. Holder
2010 U.S. App. LEXIS 23130
| 10th Cir. | 2010Background
- DHS sought removal of Garcia-Carbajal, who conceded entry without inspection and sought discretionary cancellation under §1229b(b) for unusual hardship to U.S. citizen family.
- IJ concluded Garcia-Carbajal was ineligible for cancellation due to a prior Colorado assault conviction involving moral turpitude.
- Garcia-Carbajal appealed to the BIA focusing on the process used by the IJ, not the merits of moral turpitude.
- BIA held the IJ followed Silva-Trevino’s two-step framework and affirmed the decision.
- Garcia-Carbajal filed petition for review arguing new substantive theories about moral turpitude; he did not exhaust these before the BIA.
- Court dismissed the petition for review for lack of exhaustion and Sidabutar-based exhaustion not satisfied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Garcia-Carbajal exhausted administrative remedies | Garcia-Carbajal exhausted by raising the issue before the BIA | Garcia-Carbajal failed to present his new theories before the BIA | Dismissed due to failure to exhaust |
| Whether Sidabutar allows review of unexhausted, new substantive arguments | Sidabutar permits review of arguments sua sponte exhausted by BIA | Sidabutar applies only when BIA clearly identified, entertained, and decided the issue | Sidabutar not satisfied; exhaustion not achieved |
| Whether the BIA’s brief remark could exhaust new substantive theories | BIA’s remark implies consideration of new theories | No explicit full explanatory opinion or substantive discussion on those theories | Not exhausted |
| Whether futility or other doctrines waive exhaustion | Exhaustion would be futile to BIA interpretation of federal term | We do not waive exhaustion; BIA expertise may apply but not shown here | Exhaustion not waived; petition dismissed |
| Whether the petition could be reviewed on the merits notwithstanding exhaustion rules | Merits review allowed due to Sidabutar exception | Merits review barred by exhaustion requirements | Review denied; petition dismissed |
Key Cases Cited
- Torres de la Cruz v. Maurer, 483 F.3d 1013 (10th Cir. 2007) (exhaustion requires presenting the specific legal theory to the BIA)
- Sidabutar v. Gonzales, 503 F.3d 1116 (10th Cir. 2007) (narrow exhaustion rule: BIA must clearly identify, entertain, and decide a matter; full explanatory opinion required)
- Matter of Silva-Trevino, 24 I. & N. Dec. 687 (AG 2008) (two-step analysis for moral turpitude; statute then record of conviction)
- Matter of Solon, 24 I. & N. Dec. 239 (BIA 2007) (upholds approach to moral turpitude under Silva-Trevino framework)
- Matter of Fualaau, 21 I. & N. Dec. 475 (BIA 1996) (precedent cited in moral turpitude context)
- Unemp. Compensation Comm'n of Alaska v. Aragon, 329 U.S. 143 (U.S. 1946) (general administrative-law exhaustion principles)
- Weinberger v. Salfi, 422 U.S. 749 (U.S. 1975) (prudential reasons to defer to agency processes)