Garcia-Carbajal v. HolderGarcia-Carbajal v. Holder
Alonso Garcia-Carbajal seeks to challenge a Board of Immigration Appeals (“JPIA”) order on grounds he never argued to the Board. Ordinarily, this a petitioner cannot do. Ordinarily, a petitioner must exhaust all administrative processes available to hear his arguments before he may seek to bring those arguments to court. But Mr. Garcia-Carbajal submits his case isn’t an ordinary one. Under
Sidabutar v. Gonzales,
I
This case began when the Department of Homeland Security sought to remove Mr. Garcia-Carbajal from the country. In response, Mr. Garcia-Carbajal conceded that he entered the country without inspection and was lawfully subject to removal. At the same time, though, he sought discretionary relief under 8 U.S.C. § 1229b(b). That provision allows the Attorney General to “cancel” a removal that would result in “unusual hardship” to an alien’s U.S. citizen family members. In support of his cancellation request, Mr. Garcia-Carbajal testified to economic and personal harms that would befall his family should he be forced to leave the country.
But an immigration judge (“IJ”) hearing Mr. Garcia-Carbajal’s case under the Attorney General’s delegated authority saw a problem. Section 1229b(b) prohibits the Attorney General from cancelling the removal of an alien who has been convicted of a “crime involving moral turpitude.”
See
8 U.S.C. § 1229b(b)(l)(C); 8 U.S.C. § 1182(a)(2). And this posed an obstacle
Mr. Gareia-Carbajal filed a terse appeal in the BIA. His argument there focused not on the substantive question whether his prior state conviction was or wasn’t a crime involving moral turpitude, but on the process the IJ used to analyze that question. Other than another theory he’s since abandoned, the sum total of Mr. GarciaCarbajal’s appeal was this:
The trial court failed to engage in the analysis described in the BIA decision in Silvar-Trevino, [24 I. & N. Dec. 687,2008 WL 4946455 (A.G.2008) ], and therefore, its analysis is flawed. That decision was issued after the [immigration judge’s] decision herein, and therefore, the court could not be expected to have been aware of it before it existed, but nonetheless, that decision is binding precedent, and the court is required to follow it.
R.O.A. at 17. In Matter of Silva-Trevino, the Attorney General held that an immigration judge should first look at the statute of conviction to determine whether there is a “realistic probability” that the statute will sometimes reach conduct involving moral turpitude. 24 I. & N. Dec. at 698. If the statute always or never applies to such conduct, the inquiry ends. But if that inquiry doesn’t resolve the question, the immigration judge should then look to the record of conviction to determine whether the petitioner’s specific conviction involved moral turpitude. Id. at 698-99.
The BIA rejected Mr. Garcia-Carbajal’s appeal. Acknowledging that Silva-Trevino hadn’t yet been decided at the time of the IJ’s decision in Mr. Garcia-Carbajal’s case, the BIA held that the IJ nonetheless had anticipated and “essentially ... followed” the path Silva-Trevino later suggested. R.O.A. at 3-4. The immigration judge had determined that the Colorado statute “reached both crimes that involve moral turpitude and those that do not. He then ... examined the conviction records which indicate ... that [Mr. Garcia-Carbajal’s] conviction involved knowingly causing bodily injury to another individual. As such the Immigration Judge correctly determined that the crime involved moral turpitude. See Matter of Solon, 24 I. & N. Dec. 239 (BIA 2007), citing Matter of Fualaau, 21 I. & N. Dec. 475 (BIA 1996).” R.O.A. at 4. In this way, the BIA concluded, the immigration judge had proceeded consistently with Silva-Trevino and reached the correct result. Id.
II
In his petition for review before us, Mr. Gareia-Carbajal no longer disputes that his case was analyzed under the
process
suggested by
Silva-Trevino.
Instead, he seeks to pursue two
substantive
arguments why his crime doesn’t qualify as one “involving moral turpitude.” First, he says, as a categorical matter the statute under which he was convicted
never
implicates crimes of moral turpitude. Second, and even if it does, he says his conviction shouldn’t be considered a crime involving moral turpitude because it didn’t require the state to prove that he acted with a specific intent or inflicted serious bodily injury.
See
Petr. Br. at 12 (Statement of the Issues Presented). We lack authority to entertain these arguments, however, because Mr. Gareia-Carbajal never pursued them before the BIA and so failed to exhaust them administratively. Neither are we persuaded by Mr. Garcia-Carbajal’s
A
It is a fundamental principle of administrative law that an agency must have the opportunity to rule on a challenger’s arguments before the challenger may bring those arguments to court. “A reviewing court usurps the agency’s function when it sets aside the administrative determination upon a ground not theretofore presented and deprives the [agency] of an opportunity to consider the matter, make its ruling, and state the reasons for its action.”
Unemp. Comp. Comm’n of Alaska v. Aragon,
This general principle of administrative law bears special force in the immigration context, where Congress has reduced it to a statutory command.
See
8 U.S.C. § 1252(d) (an alien seeking, as here, to challenge a removal order may do so “only if [ ] the alien has exhausted all administrative remedies available to” him). It is not enough to go through the procedural motions of a BIA appeal, or to make “general statements in the notice of appeal to the BIA,” or to level “broad assertions” in a filing before the Board.
See Torres de la Cruz v. Maurer,
Our decision in
Torres de la Cruz
illustrates the point. There, a legally admitted alien faced removal because he stood convicted of a “controlled substance” offense.
See
8 U.S.C. § 1227(a)(2)(B)©. He appealed to the BIA, arguing that his conviction wasn’t a controlled substance offense because it was only a misdemeanor. Before this court he urged the same conclusion, but changed his argument. Now, he said, his conviction was not a controlled substance offense because it involved drug
possession,
not drug
trafficking
as required under his interpretation of the statute. We held this latter theory had not been exhausted administratively and refused to consider it on the merits.
See Torres de la Cruz,
Under this standard, Mr. Garcia-Carbajal has not exhausted the arguments .he seeks to pursue in this court. The only question he presented for decision to the BIA was whether the immigration judge “failed to engage in the [two step] analysis described in the BIA decision in
Silva-Trevino.”
R.O.A. at 17. Before us, he has abandoned this particular legal theory entirely. Instead of challenging the
process
by which his case was analyzed, he now seeks to challenge the
substance
of the results it reached — arguing first, as a categorical matter, that the Colorado statute under which he was convicted
never
implicates crimes of moral turpitude; and, second, that, even if the statute does
sometimes
implicate crimes of moral turpitude,
B
Even if all this ordinarily holds true, Mr. Garcia-Carbajal submits his is no ordinary case. We may, he says, review his new arguments on appeal because of a rule we announced in
Sidabutar.
There, this court recognized that “generally [we will] assert jurisdiction only over those arguments that [an alien] properly presents to the BIA.”
Sidabutar,
To understand why, some background about
Sidabutar
is necessary. There, the alien appealed to the BIA only his political asylum claim. In its decision, the Board proceeded to dispose not only of that claim for relief; it also expressly reached out and considered the alien’s (never appealed) claims involving restriction on removal and the convention against torture, issuing a final substantive decision on those two independent claims for relief as well.
Id.
While Article III courts don’t usually reach out to decide unappealed claims for relief, agencies aren’t always subject to the same strictures. And precisely because of the deference we owe agencies when they are interpreting their own administrative procedures, we said that “if the BIA deems an issue sufficiently presented to consider it on the merits, such action by the BIA exhausts the issue as far as the agency is concerned ... and that is all § 1252(d)(1) requires.”
Sidabutar,
At the same time, we acknowledged that this form of exhaustion will be the rare exception, not the rule. It isn’t every day, after all, that an agency takes up two independent claims for relief not appealed to it and proceeds to issue a final decision on their merits. So in
Sidabutar
we stressed that it is only when it is clear that the BIA has issued “a full explanatory opinion or a discernible substantive discussion” on the merits of “matters not presented by the alien” that we will consider it to have chosen to exhaust that claim administratively.
To satisfy the exhaustion requirement in the narrow fashion
Sidabutar
suggests, then, we hold three preconditions must be met to qualify for exhaustion under its terms. As in
Sidabutar
itself, the BIA’s ruling must: (1) clearly identify a claim,
Each of these requirements is essential. If it’s not clear that the agency identified a potential argument, we can hardly be sure that the agency was aware of it, let alone ruled on it. Whenever an agency states a conclusion (as here, for example, “the Immigration Judge correctly determined that the crime involved moral turpitude”) it impliedly rejects any number of unmade potential arguments. But that doesn’t mean the agency noticed those arguments, let alone considered and ruled on them. Likewise, even if the agency identifies a potential argument (unmade by the petitioner), we can’t be certain the agency applied its expertise to the question unless and until the agency makes clear its wish to entertain the argument and proceeds to rule on it in a full explanatory opinion or substantive discussion. Only when all of these conditions are met can we be sure that § 1252(d)(l)’s exhaustion requirement has been satisfied, with the agency having had a fair chance to apply its expertise to the matter and having reached a final decision.
The whole point of Sidabutar was to respect an agency’s clearly expressed wish to exhaust a question not presented to it by reaching a final decision — to defer to an agency’s chosen administrative exhaustion procedures. If stray or cryptic comments by an agpncy in the course of its decision were enough to invoke our jurisdiction over arguments never raised before the agency, litigants would have less incentive to bring all their arguments first and clearly to the agency for decision. Worse, the agency itself would be inhibited from providing thorough and explanatory opinions, as any passing remark could serve as the basis for the alien’s next round of appeal. In this way, the opportunity for a reasoned and expert agency decision in the first instance would be much diminished. To ensure that we are enforcing the exhaustion requirement in a way respectful to agency processes — rather than snaring the agency — we may only proceed to consider an issue under Sidabutar when it is clear that the Board actually considered the question and applied its expertise to answer it.
None of the requisite clarity exists in this case. The closest thing we have to evidence that the BIA identified and addressed Mr. Garcia-Carbajal’s newly minted substantive arguments is this language at the end of its opinion:
As such, the Immigration Judge correctly determined that the crime involved moral turpitude. See Matter of Solon, 24 I. & N. Dec. 239 (BIA 2007), citing Matter of Fualaau, 21 I. & N. Dec. 475 (BIA 1996).
BIA Op. at 2. Because Solon and Fualaau spoke to when a crime is and isn’t one “involving moral turpitude,” we suppose it’s possible the BIA anticipated the substantive question whether Mr. Garcia-Carbajal’s crime qualified and decided that it did. But it’s also possible the Board didn’t.
In the first place, the only issue the BIA
clearly
identified in this case was the question actually presented to it — whether the IJ successfully anticipated and followed
Silvctr-Trevino’s
analytical process. The agency did
not,
for example, take a detour to note that “although we have previously held that
purposeful
assault is a crime involving moral turpitude,
knowing
assault is a lesser mens rea arguably calling for a different result.”
That
would’ve signaled that the agency recognized that an alien might try (as Mr. Garcia-Carbajal tries in one of his arguments before us) to distin
Likewise, nothing in the BIA’s opinion demonstrates that the agency exercised its discretion to take up that or any other of the arguments Mr. Garcia-Carbajal now seeks to press in court. The Board merely walked through the steps necessary to answer Mr. Garcia-Carbajal’s objection that the immigration judge improperly applied Silvcu-Trevino’s two-step analysis. Stray statements made in the course of answering the arguments the alien actually presented do not, without more, indicate that the agency sought to exercise its discretion to do anything beyond what was asked of it.
Finally, nothing in the BIA’s opinion could be called a full explanatory opinion or substantive discussion deciding Mr. Garcia-Carbajal’s current arguments. While we of course defer to the agency’s determination of the depth of explanation merited by a given question, one cryptic sentence followed by two citations to prior authority cannot be fairly characterized explanatory or substantive.
Simply put, Mr. Garcia-Carbajal meets none of the three essential elements to exhaustion under Sidabutar. Allowing him to avoid a statutory exhaustion requirement based on language of, at most, ambiguous purpose would do nothing to respect agency authority and much to undermine it, encouraging future efforts by litigants to squeeze elephants of arguments into court through administrative mouseholes. This is not the sort of respect for administrative decisionmaking on which § 1252(d), Torres de la Cruz, and Sidabutar are grounded and which they seek to encourage. **
Because Mr. Garcia-Carbajal has not exhausted his administrative remedies on the arguments he now seeks to pursue in this court, the petition for review is
Dismissed.
Notes
Mr. Garcia-Carbajal further argues that we can and should waive the exhaustion requirement when exhaustion would’ve been futile. In his view, requiring him to make his current arguments to the BIA would be a fruitless exercise, given that we owe the BIA no deference when it is interpreting state criminal statutes, like Colorado’s assault statute. But even assuming without deciding that we have the legal authority to waive the statutory exhaustion requirement embodied in § 1252(d)(1) on a showing of futility, Mr. Garcia-Carbajal's argument fails on its own terms. The issues he now seeks to pursue— whether the Colorado statute under which he was convicted can
ever
involve a crime of moral turpitude; whether, if it can, his particular conviction involved a crime of moral turpitude — certainly require examination of state law. But they
also
turn on a question of federal immigration law — namely, what does and doesn’t qualify as a "crime involving moral turpitude,” as that term is used in federal law.
See
8 U.S.C. § 1229b(b)(l)(C) & § 1182(a)(2). And it is at least possible we owe the BIA’s construction of that federal statutory term a degree of deference.
See Solis-Muela v. I.N.S.,