Rosaura Sola v. Eric Holder, Jr., 2013 U.S. App. LEXIS 13219

Petitioner Rosaura Sola, a Mexican citizen, sought derivative relief (NACARA and asylum) based on her husband Ebelio Sola Rosa’s affirmative applications.
The husband applied for asylum and NACARA relief; he received Temporary Protected Status (TPS) and thus was not placed in removal proceedings; both their affirmative applications were denied.
After denial, Rosaura Sola was placed in removal proceedings by the government without her husband being placed in proceedings alongside her.
Sola contended she was denied due process because proceeding without her husband prevented her from pursuing derivative relief tied to his claims.
Sola did not raise the due-process/continuance argument before the Immigration Judge (IJ) or the Board of Immigration Appeals (BIA).
The Ninth Circuit considered whether it had jurisdiction to review the claim given the statutory exhaustion requirement for administrative remedies.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether court may review Sola’s due-process claim despite failure to raise it administratively	Sola: placing her in removal proceedings without husband denied due process because she cannot pursue derivative relief tied to his asylum/NACARA claims	Government: Sola failed to exhaust administrative remedies; IJ/BIA could have addressed the claim (e.g., by granting a continuance)	Court: Petition dismissed for lack of jurisdiction because Sola failed to exhaust; claim did not fall within the constitutional-exception to exhaustion

Barron v. Ashcroft, 358 F.3d 674 (9th Cir. 2004) (failure to raise issue before BIA generally forfeits review)
Rashtabadi v. INS, 23 F.3d 1562 (9th Cir. 1994) (constitutional challenges to INA/procedures are excepted from exhaustion in some circumstances)
Padilla-Padilla v. Gonzales, 463 F.3d 972 (9th Cir. 2006) (BIA lacks jurisdiction to determine constitutionality of statutes it administers)
Liu v. Waters, 55 F.3d 421 (9th Cir. 1995) (distinguishing procedural errors correctable by the agency from those outside the BIA’s ken)
Sanchez-Cruz v. INS, 255 F.3d 775 (9th Cir. 2001) (procedural challenges correctable by administrative tribunal must be exhausted)
Cruz Rendon v. Holder, 603 F.3d 1104 (9th Cir. 2010) (denial of continuance can be prejudicial and an abuse of discretion when it thwarts fair presentation)
Arsdi v. Holder, 659 F.3d 925 (9th Cir. 2011) (agency should be given opportunity to correct its own errors; exhaustion preserves review)
An Na Peng v. Holder, 673 F.3d 1248 (9th Cir. 2012) (de novo review of legal conclusions underlying denial of continuance)
Ahmed v. Holder, 569 F.3d 1009 (9th Cir. 2009) (IJ’s denial of continuance reviewed for abuse of discretion)
Jiang v. Holder, 658 F.3d 1118 (9th Cir. 2011) (denial of continuance can be an abuse of discretion)
Malilia v. Holder, 632 F.3d 598 (9th Cir. 2011) (same concerning continuance denial)