2004 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit
10-18-2004 

# Es pino z a-C i s ne r o s v

. Att y Ge n U S A
P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ocke t N o . 03-3021

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Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al Re posit or y

. It h as be e n a c c e pt e d for inclusion in 2004 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al Re posit or y

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w . v i l l a no v a . e du/thir dc ir c uit_2004/223NOT PRECEDE NTIAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT
Nos. 03-3021 & 03-4293
JUAN E SPI NOZA- CIS NEROS

Appellant

v. JOHN AS HCROFT , A TTORNE Y GENERAL

Appellee.
On petiti on for revi ew of a final or der of the Bo ard o f Imm igration Ap peals File No: A72-503- 256

Submitte d pursuant

to Third Ci rcuit

LAR 34.1(a) on September 28, 2004 Be for e: R EN DE LL , FU EN TE S, and SM ITH , Circuit

Judges (Fil ed: October

18, 2004)

____________________ OPINI ON OF THE COURT

_____________________1 The IN A w as amen ded by the H omelan d Secu rity Act of 2002 , Pub. L. N o. 107-

296, § 471, 116 St at. 2135, 2192, 2205 ( Nov. 25, 2002), which, on March 1, 2003, trans ferred t

he functi ons of the I NS to various bureaus, i ncluding t he Bureau of Citiz ens hip and Imm igra tion Ser vice s w ithin the D epa rtme nt o f H om elan d S ecu rity. See generall y 1 G ord on, M ailm an, & Ya le-L oeh r, Immigration Law and Procedu re 1:SA 1-1-2 . The fun ctions o f the E xecu tive O ffice for Im migra tion R eview contin ue to reside in the Department of Justice, under the direction of the AttorneyGeneral. For ease of ref erenc e, t his opini on ref

ers to the agency

as the INS. 2 FU EN TE S, Circuit

Judge
. 

### Petiti oner Juan Espinoza-Ci sneros challenge s two order s by the Board of Immigra tion Appeals (“BIA”) denying his appeal and motion for reconsiderati on of an order of removal entered by the immi gration judge. His primary contentions on appeal are tha t (1) the crim e of reckless enda

ngerme nt is not a crim e involving m

oral tur pitude for purposes of the Immigrati on and Nationalization Act (“INA”), and (2) he was entitled to a new hea

ring before

the im migra tion judge (“ IJ”) for

consider ation of hisapplica

tion for adju stment of status. Becau se Petitioner failed to exhaust th e first issue on ap peal to the BIA, and because he sh ows no p rejudice arising from the BIA’s f ailure to remand h is applica tion for adjus tment

of statusto an IJ, we will de ny t he petit ion. I. Espinoza-Cisneros, a citi zen of Mexico, arrived in the United States in March 1998 without inspection. In Decem ber 2001, the

Imm igrati on and Natura

lizat ion Service 1 

### (INS) bega n removal proc eedings thro ugh the issu ance of a N otice to App ear. The INS alleged that

Espinoza- Cisneroswas rem ovable bec ause he wa s prese nt without3



### having been a

dmitt ed or paroled as provi ded in INA § 212(a )(6)(A) (I), 8 U. S.C. § 1182(a)(6) (A)(I) . Espinoza-Cisner os admitted the

allega tions of the

INS but sought relief in adju stment of status based on his marriage to a p ermanent resident. The INS subsequently

lodged anothe

r charge against Espinoza- Cisnerosalleging that he ha d been convicted on Novem ber 5, 2001 in t

he Court of Com

mon Plea s of Berks County Pennsylvania fo r reckless endan germent of his w ife (then girlfriend) and th eir three-year old son. The INS further alleged that, as aresult of that conviction, EspinozaCisneroswas rem

ovable for ha

ving been convi cted of a crime involving m

oral tur pitude pursuant to INA § 21 2(a)(2)(A)(i)(I), 8 U.S.C. § 1 182(a)(2) (A)(i)(I). The IN S also offered evidence to the imm igration judge that Espinoza-Cisneros was arres ted seven time s in the United Stat

es sinc e 1994. Espinoza-C isneros then req uested a contin uance of his removal proce edings to allow the INS to adjudic ate a fa

mily preference petition filed by hi s wife. The immigra tion judge rejected that request and ordered him r emoved to Mexico. On May 17, 2002 , Espinoza- Cisne ros filed a

n appe al of t

hat r eques t wit

h the B IA. On January 8, 2003, Espinoza-Cisneros file d a motion to remand with the BIA based on the intervening approval of the I-130 petition filed by his wife, claiming that her natur aliza tion as a United Sta

tes citizen r

endered him eli gible to a

pply for adjustm

ent of statusto permanent re sident. The BIA dism issed Espinoza-Ci sneros’ appeal a nd denied hismotion t

o rema nd. The BIA al so denied Espinoza-Ci sneros’ subsequent4



### motion to reconsider the BIA’s previous Order. Espinoza- Cisnerosthen petitioned thi s Court. He argues t hat: fir st, hisconvicti on for the cr ime of r eckles s endanger

ment doe s not rende

r him r emovable becaus e it wasnot a crime of moral turpitu de; second, h e is eligible for ad justment of statu s, which wo uld prevent hi s rem

oval, and; third, hi s right t o due proces s of law wasviolated because he was denie d a hearing before an immi gration judge on his appli cation for

adjustm ent of status. We conclude that because Espinoza-Cisner os did not earlier contest t he IJ’s finding that he was con victed of a c rime of moral turpitud e, and theref ore failed to exhaust his administr

ative reme dies, we are without jurisdicti on to review the IJ’s finding s. We also hold th at Espinoza-C isneros has failed to show th e prejudice requisite to a due proc ess viol ation. II. In thi s case, Petitioner ar gues fir st and for emost that the IJ erred i n finding t hat the crime of r eckless endangerment under Pennsyl vania l aw constit utes a crime of moral turpitud e und er the IN A. S pecif ically, he co ntend s that rec kless e ndan germ ent in Pennsyl vania does not

contai n the el ements of “evi l intent” or “ knowledge” that must be present in a st atute to quali fy i t as a crime invol ving moral t urpit ude. He also c laims t

hat reckless end angerm ent does n ot amou nt to a crime o f mora l turpitude becau se the BIA itself ha s con sistently held that m oral turp itude d oes n ot lie in cr imina lly reckless c ond uct.2 

### When we apply the r ule of exhaustion as a matte r of discretion, we may

review strictly legal questions of co nstitutional o r statutory interpretation that d o not implicate the special expe rtise of an administrativ e agency. See Facchiano v. Dept. of Labor , 859 F.2d 11 63, 116 7-68 (3d Cir. 1988 ). But when the exhaustio n requirement is statuto rily imposed, as is the case he re, the legal que stion exceptio n is unavailab le. Id
. 5 The prob lem f or Pe titioner is th at durin g his a dm inistrative appe al, he fa iled to challe nge th e imm igration s judg e’s fin ding s on th e mo ral turpitu de issu e in eith er his appell ate bri ef or noti ce of appeal. Generall y, “a court may revi ew a final or der of removal onl y i f .. .the alie n has exhaust ed all administ rati ve remedies avail able t o the al ien as of right...” IN A § 242 (d)(1), 8 U.S .C. § 1 252 (d)(1). T his statu tory requ ireme nt is intende d to ins ure that

“the agency

responsi ble for c onstrui ng and apply ing the immigration laws an d implem enting regu lations [] has had a full oppo rtunity to consider a petit ion er’s c laim s be for e the y are su bm itted for rev iew by a f ede ral co urt.” The odo rop oul os v . I

NS , 358 F .3d 16 2, 171 (2d C ir 200 4). Th e requ ireme nt com pels Petition er “to ra ise and exha ust his...rem edies a s to eac h claim or gro und for re lief if he.. .is to pres erve the right of judic ial review of that clai m.” 

### Abdulra hman v. A shcroft , 330 F.3 d 587, 5 94-95 (3 d Cir. 200 3). There is no doubt that the issue of whether reckless endan germen t constituted a crime of mo ral turpitude w as squarely within the B oard’s

co mpe te nc e a nd j ur is di ct io n t o r ev ie w. 2 

### Espinoza-C isneros argue s that this Cou rt does not lack jurisdiction because, in his reading, the imm

igration judge failed to identify the crime of m

oral turpitude on which his decision rested . However , though the IJ pointed to a variety of criminal activity in6



### which Espinoza-Cisneros may have been involved, the immigra tion judge characterized only Espinoza-Cisner

os’ conviction for reckless endangerme nt as a crim

e of moral turpitude and specificall

y r eferre d to it asjustific ation for hi s decis ion to rem ove Espinoza-C isneros notw ithstanding the latter’s pendin g I-130 ap plication. See Oral Dec. of the Im m. Judge , at 1-2. By not appe aling t

he IJ’s findings to the Boar d, Peti tioner has fail ed to provi de the Board w ith an opportunityto consider his clai ms and he has therefore failed to exhaust his admini stra tive remedies. Accordingly , we are without jurisdi ction to review thi s iss ue on appeal and t

herefore 

### need not re ach the ot her challenges t

o jurisdiction posed by Respond ent, or Petition er’s arguments regard ing his eligib ility for adjustment of statu s. III. Espinoza- Cisnerosalso ar gues that the BIA’sdenial of hi s moti on for remand deprived him of an opport unity to be hear

d on his appli cation for

adjustm ent of sta tus and theref ore violated h is right to du e process of law. In light of t

he full proc eedings that had already

taken place in connection with his earlier request for a continuance, Petiti oner ess entially

claims that he

was entitled to a

n entirely separa te, second hearing before an immigration judg e on his app lication for ad justment of statu s. We disagree. Due proces s entit

les the Petiti oner only

to “the oppor

tunity to be hear

d at a m eaningful time and in a meaningful manner.” Mathews v. Eldridge , 424 U.S . 319, 33 3 (1976 ); see also Dia v. A shcroft , 353 F.3d 228, 239 (3d Ci r. 2003). Pe

titione r has not s hown that he7



### wa s d en ie d s uc h a n o pp or tu ni ty. Specifically , Petitioner has not explained why a second hearing before the IJ would have made any difference
. See Wilson v. Ashcro ft , 350 F.3d 377, 381 (3d Cir. 2003) (o bserving th at there is “no du e process violatio n in the absen ce of prej udice”). Espinoza-Cisneros’ own characteriz ation of the proceedings before the BIA concedes that it explicitly weighed th e equities for a nd against ad justment of statu s. See Pet. Br. at 26-27; BIA Dec . at 2. Petiti oner never

theles s insis ts that

it was wr ong for the BIA t

o presum e that t he immigra tion judge would reject his application. However, the imm igration judge’s position on Petitioner’s applicati on was abundantly clea r. The BIA correctly

noted that the immi gration judge refused to continue removal proceedings in favor of EspinozaCisneros’ wif e’s immediate relative petition, co ntrary to what the jud ge described as his normal practic e, because he deemed Petitioner’s record in the Unite d States “aby smal.” BIA Decision , at 1-2; Oral De c. of the Imm. Judge, a t 2. Petitioner h as not poin ted to any new evidenc e or argum

ents he woul d have ma

de to the immi gration judge upon
rema nd. Therefor

e, Petitioner wa s not prejudi ced by the BIA’srefusal

to remand Petitioner’s motion for adju stment of status. See Wilson , 350 F. 3d at 381. Petitioner’s other ar

guments on appeal are without me rit and require no further discuss ion. We not

e that Espinoza-Ci sneros m ay ye t re-enter the

United Sta

tes if he appliesfor and is gr

anted a vi sa under t

he speci al exem

ption from

imm igrati on8



### limitations available to sp ouses of U nited States citizens an d other “immediate relatives,” INA § 201(b)(2)(A)(I), and is further granted a waiver of INA § 212(a)(9)(B)(i)(II) under INA § 212(a)( 9)(B)(v) . 8 U.S.C. § 1151( b)(2)(A) (I); § 1182( a)(9)(B). But for t he foregoin g reasons, this C ourt may not review the ex isting order f or his removal. We wi ll deny

the pe tit ion for revi ew.