Rafael Lagunes-Barradas v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10926
Non-Argument Calendar
____________________
RAFAEL LAGUNES-BARRADAS,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A205-570-510
____________________
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2 Opinion of the Court 21-10926
Before R OSENBAUM , GRANT, and H ULL , Circuit Judges.
PER CURIAM:
Rafael Lagunes-Barradas petitions for review of the order of
the Board of Immigration Appeals (“BIA”) affirming the
Immigration Judge’s (“IJ”) denial of his application for cancellation
of removal. After review, we dismiss Lagunes-Barradas’s petition
for lack of jurisdiction.
I. FACTS AND PROCEDURAL HISTORY
A. 2012–2018
In 1993, Lagunes-Barradas, a native and citizen of Mexico,
entered the United States without inspection. In 2012, the
Department of Homeland Security issued Lagunes-Barradas a
notice to appear, charging him as removable under Immigration
and Nationality Act (“INA”) § 212(a)(6)(A)(i), 8 U.S.C.
§ 1182(a)(6)(A)(i), because he was present in the United States
without having been admitted or paroled.
In 2012, Lagunes-Barradas applied for cancellation of
removal. His application stated that his three U.S. citizen children
would experience exceptional and extremely unusual hardship
(“EEUH”) if he were removed.
At an initial hearing on March 27, 2013, Lagunes-Barradas,
through counsel, conceded removability as charged. He explained
that his request for cancellation of removal was based on his 1993
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21-10926 Opinion of the Court 3
entry and his three U.S. citizen children, ages 17, 14, and 11. The
IJ set a master hearing for August 2013.
For reasons not reflected in the administrative record,
Lagunes-Barradas’s next hearing did not take place until May 10,
2016. At that hearing, the IJ set a merits hearing for November 18,
2018.
B. 2018–2021
By the time of the merits hearing—which took place on
November 26, 2018—Lagunes-Barradas’s children were 23, 19, and
16. At the 2018 hearing, Lagunes-Barradas testified that (1) his
oldest son was in good health and (2) he and his son worked
together in a family-owned company remodeling and painting
houses. Lagunes-Barradas agreed that his two remaining children
were in good health and doing well in school.
At the end of the hearing, the IJ issued an oral decision
denying Lagunes-Barradas’s application for cancellation of
removal. As to hardship, the IJ noted that Lagunes-Barradas had
two qualifying family members, his teenage children, and that his
23-year-old son did not qualify because the statute set the age limit
at 21. The IJ found that Lagunes-Barradas had not shown that his
children would experience EEUH because they did not suffer from
serious medical conditions or have special educational needs,
which it explained the BIA had “made clear [were] the types of
cases that may well be a candidate” for EEUH consideration.
Instead, the types of financial and emotional hardships Lagunes-
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4 Opinion of the Court 21-10926
Barradas had shown his children would suffer were the types of
usual hardships children normally suffer as a result of a parent’s
deportation.
On November 30, 2018, Lagunes-Barradas filed a counseled
Notice of Appeal to the BIA. He did not file a brief with the BIA.
His Notice of Appeal, however, explained his ground for appeal as
follows:
The Immigration Judge erred in denying
Respondent’s application for Cancellation of
Removal because the evidence presented was
sufficient to show that Respondent’s two United
States Citizen children would suffer “exceptional and
extremely unusual hardship.” Based on the
testimony and evidence given at trial, Respondent
met his burden of proof that his removal to Mexico
would cause exceptional and extremely unusual
hardship to his children.
In an attached paragraph, Lagunes-Barradas explained that he was
“the sole financial provider for his two qualifying United States
citizen children, ages 19 and 16.” Lagunes-Barradas stated that his
children would suffer emotionally without having their father
around and financially because their mother was unable to work
legally in the United States. In his Notice of Appeal, Lagunes-
Barradas did not raise any issues regarding his third American
citizen child, the delay in processing his case, or the hardship
standard the IJ applied.
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21-10926 Opinion of the Court 5
On February 23, 2021, the BIA affirmed without an opinion.
[
On March 23, 2021, Lagunes-Barradas timely petitioned for
review. His petition argues that (1) the IJ applied an incorrect legal
standard in its analysis of his EEUH claim and (2) the delay in his
case violated his due process rights because his oldest son was
above 21 by the time the IJ considered the merits of his claim.
II. DISCUSSION
We review our subject matter jurisdiction
de novo.
Lin v.
U.S. Att’y Gen., 881 F.3d 860, 866 (11th Cir. 2018). When the BIA
affirms the IJ’s decision without opinion under
8 C.F.R. § 1003.1(e)(4), we review the IJ’s decision as the final
agency determination.
Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1201
(11th Cir. 2005).
We may review a final order of removal only if the
petitioner has exhausted all administrative remedies available to
him as of right. INA § 242(d)(1), 8 U.S.C. § 1252(d)(1). The
exhaustion requirement is jurisdictional and precludes review of a
petitioner’s argument that was not presented to the BIA.
Lin, 881
F.3d at 867. Although not stringent, exhaustion requires that the
petitioner “previously argued the core issue now on appeal before
the BIA.”
Indrawati v. U.S. Att’y Gen., 779 F.3d 1284, 1297 (11th
Cir. 2015) (quotation marks omitted). “Though exhaustion does
not require a petitioner to use precise legal terminology or provide
a well-developed argument” in support of his claims, it does require
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6 Opinion of the Court 21-10926
that he “provide information sufficient to enable the BIA to review
and correct any errors below.”
Id. (quotation marks omitted and
alteration adopted).
Constitutional claims that the BIA has the power to review
and for which it can provide a remedy must be exhausted.
Lin, 881
F.3d at 867-68. Due process claims that an individual has been
denied a “full and fair hearing before a neutral factfinder” are
“precisely the kind of procedural error which requir[e]
exhaustion.”
Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247,
1251 (11th Cir. 2006). More generally, exhaustion is required for
constitutional “challenge[s] to process in individual case review.”
Lin, 881 F.3d at 868.
Here, Lagunes-Barradas did not raise before the BIA either
of the errors he asserts to us, and therefore he has not exhausted
his administrative remedies.
First, in his Notice of Appeal to the BIA, Lagunes-Barradas
argued only that the IJ erred in finding that his children would not
suffer EEUH if he were deported. He did not make the legal
argument that the IJ had applied an incorrect standard in
considering his EEUH claim, which is the only argument he raises
in his petition for review. Thus, he did not raise for the BIA’s
consideration “the core issue now on appeal,” and we lack
jurisdiction to consider it.
See Indrawati, 779 F.3d at 1297.
Next, Lagunes-Barradas concedes that he did not raise his
due process claim in his appeal to the BIA but argues that this claim
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21-10926 Opinion of the Court 7
did not require exhaustion before being raised in this Court. He is
incorrect. His asserted violation, that the IJ’s delay in hearing his
case prejudiced him, is a “challenge to process in individual case
review” that the BIA could have addressed and remedied if he had
raised the issue in his appeal of the IJ’s order.
See Lin, 881 F.3d at
868.
Accordingly, we lack jurisdiction over Lagunes-Barradas’s
petition for review.
PETITION DISMISSED.
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