Sosa-Valenzuela v. Garland, 20-9556

Background:

Petitioner Baltazar Abel Sosa‑Valenzuela is a Mexican national with a long criminal and removal history; he previously conceded removability in 2004 as an aggravated felon based on an assault conviction.
He initially received §212(c) relief which the BIA later reversed; the case produced two prior Tenth Circuit decisions and proceeded over decades.
In 2011 Sosa‑Valenzuela was convicted of racketeering and conspiracy to distribute cocaine; proceedings were re‑calendared in 2019 and the government amended removal charges.
After Sessions v. Dimaya (2018), Sosa‑Valenzuela sought to withdraw his 2004 concession (arguing the assault no longer qualified under §16(a) after Dimaya) and requested time to brief the issue; the IJ set a May 16, 2019 deadline.
He filed a brief late (May 23), the IJ denied acceptance, deemed his arguments waived, denied §212(c) relief on discretionary grounds, and ordered removal; the BIA affirmed the IJ’s refusal to accept the late brief and the denial of relief.
The Tenth Circuit dismissed much of the petition for lack of jurisdiction for failure to exhaust administrative remedies, and denied the portion challenging the adequacy of the BIA’s decision.

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether IJ/BIA erred in refusing to accept untimely brief and in refusing to let Sosa withdraw his 2004 concession	Dimaya undermines the concession; late brief caused by newly discovered controlling case law so IJ should have accepted it	IJ has discretion to set/ enforce deadlines; petitioner failed to timely move for extension or show cause	Court lacked jurisdiction to review because BIA treated the claim as waived before the IJ and petitioner did not properly preserve challenge to that waiver
Whether the BIA failed its regulatory duty to ensure no pending issues remained (including alleged oral motion to withdraw concession)	IJ/BIA never ruled on petitioner’s oral motion to withdraw; regulatory duty required resolving pending motions before removal	Petitioner presented a different theory to the BIA (impact of Dimaya), not the procedural complaint that an oral motion went unresolved; therefore issue was not exhausted	Claim unexhausted; court cannot review failure‑to‑rule procedural theory not presented to the BIA
Adequacy of BIA’s explanation for denying §212(c) relief	IJ/BIA failed to give a reasoned explanation for denying discretionary relief	BIA relied on prior discretionary denial and new 2011 convictions, showing it considered relevant factors	To the extent reviewable, the BIA’s brief explanation was sufficient; court will not review discretionary denial under §1252(a)(2)(B)
Whether the petition presents reviewable legal or constitutional questions despite exhaustion failures	Petitioner urges merits review of withdrawal and BIA duties based on Dimaya and other legal claims	Jurisdiction is limited: courts only review fully exhausted legal or constitutional claims; many claims were not presented to the BIA	Petition dismissed in part for lack of jurisdiction; remainder (adequacy of BIA decision) denied on the merits or nonreviewable as discretionary

Key Cases Cited

Sosa‑Valenzuela v. Holder, 692 F.3d 1103 (10th Cir. 2012) (prior appellate history in petitioner’s removal proceedings)
Sosa‑Valenzuela v. Gonzales, 483 F.3d 1140 (10th Cir. 2007) (prior appellate history in petitioner’s removal proceedings)
Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (invalidated the residual clause of §16(b))
Garcia‑Carbajal v. Holder, 625 F.3d 1233 (10th Cir. 2010) (exhaustion requires presenting the same specific legal theory to the BIA)
Martinez‑Perez v. Barr, 947 F.3d 1273 (10th Cir. 2020) (federal court will consider only arguments properly presented to the BIA)
Maatougui v. Holder, 738 F.3d 1230 (10th Cir. 2013) (BIA need not write an exhaustive opinion but must show it considered the issues)
Burke v. Regalado, 935 F.3d 960 (10th Cir. 2019) (adequate presentation to the BIA is required to preserve appellate review)