UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

JORGE SIFUENTES-FELIX, Petitioner,

v. ERIC H. HOLDER, JR., United States Attorney General, Respondent. No. 13-9546 (Petition for Review)

ORDER AND JUDGMENT *

Before BRISCOE , Chief Judge, PORFILIO and O’BRIEN , Circuit Judges.
Jorge Sifuentes-Felix, a na tive and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (BIA) decision affirming the Immigration Judge’s (IJ) order of removal. We dismiss the petition for lack of jurisdiction. Mr. Sifuentes-Felix unlawfully entered the United States in June 1985. In December 2009, he pleaded guilty to enga ging in unlawful sexual contact--being a

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not mate rially assist the de termination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### July 3, 2014
Elisabeth A. Shumaker Clerk of Court- 2 - peeping tom--in violation of former Colo. Rev. Stat. § 18-3-404(1.7). 1 A year later, the Department of Homeland Security (D HS) began removal pr oceedings by issuing a notice to appear. After c onceding he was subject to removal because he had not been admitted or paroled into the United States, Mr. Sifuentes-Felix applied for cancellation of removal, see 8 U.S.C. § 1229b(b)(1), or , alternatively, voluntary departure, id . § 1229c(b). At an in itial hearing, the IJ info rmed him that it was his burden to prove that nothing impeded the granting of such discretionary relief. The DHS moved to pretermit the app lication for cancellation of removal, alleging that Mr. Sifuentes-Felix was ineligible because his conviction was categorically a crime involving moral turpit ude (CIMT). Also, th e DHS asserted that he had not met his burden to provide docum entation that he was not convicted of a CIMT. The IJ granted the motion to pretermi t Mr. Sifuentes-Felix’s application for cancellation of removal. See id . §§ 1182(a)(2)(A) (denying admissibility to alien who commits CIMT); 1229b(b)(1)(C) (permi tting cancellation of removal if, among other things, alien has not been convicted of CIMT). Also, the IJ denied voluntary departure because his conviction precluded him from showing that he was of good moral character for the preceding five years. See id . § 1229c(b)(1)(B).

1 At the time of his conviction, the stat ute provided in releva nt part that: “Any person who knowingly observes . . . another person’s intimate parts without that person’s consent, in a situation wher e the person observed has a reasonable expectation of privacy, for the purpose of the observer’s own sexual gratification, commits unlawful sexual contact.” Colo . Rev. Stat. § 18-3- 404(1.7)(a).- 3 - Mr. Sifuentes-Felix appeal ed, seeking remand and asse rting that the IJ should have applied the modified cat egorical approach and looked at his conviction record when deciding if he had been convicted of a CIMT. He did not challenge the IJ’s determination that he bore the burden to prove his conviction did not impede his eligibility for cancellation of removal. Nor did he challenge the determination that his lack of good moral character precluded voluntary departure. The BIA dismissed the appeal, holding th at Mr. Sifuentes-Fe lix had not shown that his conviction was not categorically a conviction for a CIMT because he did not “adequately point[] to his ow n case or other cases in wh ich the Colorado courts in fact did apply the ‘Peeping Tom’ stat ute to reach non-mora lly turpitudinous behavior.” Admin R. at 5. Recognizing that Mr. Sifuen tes-Felix bore the burden to establish his eligibility for relief from removal, see 8 U.S.C. § 1229a(c)(4)(A)(i); 8 C.F.R. § 1240.8(d), the BIA noted that he did not dispute the IJ’s determination that he bore the burden of showing that his conviction was not a conviction for a CIMT. See Admin. R. at 4 n.2 (“On appeal, [Mr. Sifuentes-Felix] does not dispute the premise of the [IJ’s] de cision: absent a showing that [his] ‘Peeping Tom’ conviction is not a c onviction for a [CIMT], he is una ble to establis h eligibility for relief.”); id . at 5 (“As [Mr. Sifuentes-Felix] doe s not dispute that, absent a showing that his conviction under this statute does not categorically constitute a conviction for a [CIMT], he is unable to establish eligibi lity for relief from remova l . . . .”). Thus,- 4 - the BIA affirmed the IJ’s deni al of relief from removal. This petition for review followed. “Because a single member of the BIA decided [Mr. Sifuentes-Felix’s] appeal and issued a brief opinion, we review the BIA’s decision as the final agency determination and limit our review to i ssues specifically addressed therein.” Kechkar v. Gonzales , 500 F.3d 1080, 1083 (10th Cir. 2007) (internal quotation marks omitted). We review jurisd ictional questions de novo. Huerta v. Gonzales , 443 F.3d 753, 755 (10th Cir. 2006). Mr. Sifuentes-Felix argues that Moncrieffe v. Holder , 133 S. Ct. 1678 (2013), which concerned removability, overruled the holding in Garcia v. Holder , 584 F.3d 1288, 1290 (10th Cir. 2009), that an alien bears the bur den to prove that a conviction is not a CIMT. He maintains that under Moncrieffe , the burden of proof is irrelevant because the question whether a conviction bars relief is a legal question, so he need not establish the categorization for his crime. Further, he notes that it is often impossible for an alien to prove categorization. Add itionally, Mr. Sifuentes-Felix contends that there was no c onclusive proof that his co nviction disqualified him from relief because the agency never consid ered the criminal documents. Lastly, Mr. Sifuentes-Felix argues that even unde r the categorical approach, his conviction was not a CIMT, because the BIA incorrectly applied the generic-definition test set out in Gonzales v. Duenas-Alvarez , 549 U.S. 183, 193 (2007), and did not compare- 5 - the Colorado statute to the generic federa l statute for video vo yeurism, 18 U.S.C. § 1801(a). 2 The government, however, counters th at all of Mr. Sifuentes-Felix’s challenges are unexhausted, a nd therefore this court lacks jurisdiction to consider them. It is settled that “we only retain jurisdiction over claims challenging a final order of removal ‘if the alien has exhausted all administrative reme dies available . . . as of right.’” Torres de la Cruz v. Maurer , 483 F.3d 1013, 1017 (10th Cir. 2007) (quoting 8 U.S.C. § 1252(d)(1)). Thus, we have jurisdic tion only over claims raised and exhausted before the BIA. See id . If an issue could have been raised before the BIA, but was not, there is a failure to exhaust administrative remedies. Soberanes v. Comfort , 388 F.3d 1305, 1308-09 (10th Cir. 2004) . The alien must present the same specific legal theory to the BIA before he may assert it in a petition for review. See Garcia-Carbajal v. Holder , 625 F.3d 1233, 1237, 12 38 (10th Cir. 2010). The record is clear that Mr. Sifuentes-Felix failed to exhaust his administrative remedies. He never raised his burden-of-p roof claim before th e BIA, despite being informed by the IJ that he bore the burden of proving his eligibil ity for relief from removal. Also, as stated above, the BIA e xpressly noted that he did not challenge the

2 Section 1801(a) provides that: “Whoeve r . . . has the inte nt to capture an image of a private area of an individual wi thout their consent, and knowingly does so under circumstances in whic h the individual has a reasona ble expectation of privacy, shall be fined under this title or imprisoned not more th an one year, or both.”- 6 - IJ’s premise that the burden of proof rest ed with him. Nor did Mr. Sifuentes-Felix contest before the agency that his crime di d not fit within the ge neric-definition test of Duenas-Alvarez . Thus, “[j]udicial review does not extend to points [he] could have made before the [BIA] but did not.” Rivera-Zurita v. INS , 946 F.2d 118, 120 n.2 (10th Cir. 1991). In his reply brief, Mr. Sifuentes-Felix argues that he is raising constitutional claims, which are an exception to the exhaustion requirement. See Vicente-Elias v. Mukasey , 532 F.3d 1086, 1094 (10th Cir. 2008) (declining to “require[] e xhaustion of ‘constitutional challenges to the immigr ation laws, because the BIA has no jurisdiction to review such claims’” (quoting Akinwunmi v. INS , 194 F.3d 1340, 1341 (10th Cir. 1999) (per cu riam)). Assuming he rais es constitutional claims-- presumably involving a deni al of due process--the exception to the exhaustion requirement does not extend to “administrativ ely correctable procedural defect[s]” that are later framed as constituti onal claims, such as due process. Vicente-Elias , 532 F.3d at 1094-95 (distinguishing between pr ocedural due process and “substantive constitutional claim for relief independent of the statut ory provisions the BIA is authorized to enforce”). Consequently, Mr. Sifuentes-Felix cannot now for the first time raise burden-of-proof or Duenas-Alvarez claims that he could have raised in a motion to reopen before the BIA. See Akinwunmi , 194 F.3d at 1341 (recognizing BIA has authority to reopen cases to fix due-process errors).- 7 - Mr. Sifuentes-Felix did file with th e BIA a motion to reopen, alleging only ineffective assistance of counsel during administrative proceedings. 3 See Soberanes , 388 F.3d at 1309 (noting that complaints abou t counsel should be ra ised in motion to reopen). He argues in his reply brief that he should not be punished for his incompetent counsel’s performance during ad ministrative proceedings. But he did not file a petition for review from the BIA’s denial of the motion to reopen, and it is too late for him to do so now. See Infanzon v. Ashcroft , 386 F.3d 1359, 1361 (10th Cir. 2004) (recogniz ing BIA’s ruling on motion to reopen is separate, reviewable order); see also 8 U.S.C. § 1252(b)(1) (estab lishing thirty-day time period for filing petition for review). Thus, any complaints he has about his prior counsel’s performance are not prope rly before us. In conclusion, because Mr. Sifuentes-Felix failed to exhaust his administrative remedies with respect to any of the claims he raises in hi s petition for review, we lack jurisdiction to consider them. Accordi ngly, we dismiss the petition for review.

Entered for the Court
Mary Beck Briscoe Chief Judge

3 Although Moncrieffe was filed shortly after th e BIA dismissed his appeal, Mr. Sifuentes-Felix did not include an argument in his motion to reopen based on Moncrieffe

. See Sidabutar v. Gonzales , 503 F.3d 1116, 1122 (10th Cir. 2007) (stating unexhausted claims “s hould have been brought before the BIA in the first instance through a motion to reconsider or reopen”).