Narrative Opinion Summary
The case involves a petition by Gaspar Peña-Garcia seeking review of the Board of Immigration Appeals' (BIA) dismissal of his appeal following his removal from the United States. The court's jurisdiction, under 8 U.S.C. § 1252(d), is confined to reviewing the BIA's dismissal, which was deemed withdrawn by law. Peña's failure to appeal the removal order to the BIA resulted in a lack of jurisdiction over his claims, as he did not exhaust administrative remedies. Even if jurisdiction were proper, the court would reject Peña's claims regarding unlawful removal due to sufficient notice to his counsel and the finality of the removal order. Further claims about eligibility for cancellation of removal and inadequate notice of his hearing were not considered, as they were not raised before the Immigration Judge or the BIA. Peña's constitutional challenge to the one-motion limitation under 8 C.F.R. § 3.23, raised for the first time on appeal, was not reviewed due to insufficient briefing. The petition is denied, and the court's decision is unpublished and subject to citation restrictions per 9th Cir. R. 36-3.
Legal Issues Addressed
Constitutional Challenge to 8 C.F.R. § 3.23subscribe to see similar legal issues
Application: The court has discretion to review the constitutional challenge to the one-motion limitation but declines to do so as neither party fully briefed the matter.
Reasoning: The court has discretion to review this legal issue but chooses not to do so because neither party fully briefed the matter.
Exhaustion of Administrative Remediessubscribe to see similar legal issues
Application: The court lacks jurisdiction over claims not appealed to the BIA, as Peña failed to exhaust administrative remedies.
Reasoning: Peña did not appeal the removal order to the BIA, thus failing to exhaust administrative remedies.
Jurisdiction Over Claims Not Raised Before the IJ or BIAsubscribe to see similar legal issues
Application: The court lacks jurisdiction over Peña's claims regarding cancellation of removal and inadequate notice, as they were not raised before the IJ or the BIA.
Reasoning: The court lacks jurisdiction over these claims since they were not raised before the IJ or the BIA.
Jurisdiction under 8 U.S.C. § 1252(d)subscribe to see similar legal issues
Application: The court's jurisdiction is limited to reviewing the BIA's dismissal, which was considered withdrawn by operation of law.
Reasoning: Jurisdiction under 8 U.S.C. § 1252(d) is limited to the review of the BIA's dismissal, which was considered withdrawn by operation of law per 8 C.F.R. § 3.4.
Notice to Counsel and Finality of Removal Ordersubscribe to see similar legal issues
Application: The court would reject the claim regarding lack of notice to counsel, as Peña's counsel had notice of the removal order through two stay requests.
Reasoning: Even if the court had jurisdiction, it would reject the claim, noting that Peña's counsel had notice of the removal order through two stay requests, and the order became final due to Peña’s failure to timely appeal it.