2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-2-2010

Elias Alfonso Juarez-Gonzalez v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-1790

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1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-1790

___________

ELIAS ALFONSO JUAREZ-GONZALEZ,

PETITIONER

v.

ATTORNEY GENERAL UNITED STATES,

RESPONDENT

____________________________________

On Petition for Review of an Order of the 

Board of Immigration Appeals 

Immigration Judge: Honorable Frederic Leeds 

(Agency No. A075-445-182)

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) on April 7, 2009;

Resubmitted Pursuant to Third Circuit LAR 34.1(a) on Panel Rehearing on 

May 24, 2010

Before: SCIRICA, SMITH and WEIS, Circuit Judges

 (Opinion filed: August 2, 2010) 

___________

OPINION

___________

PER CURIAM.

Elias Alfonso Juarez-Gonzalez, a citizen and native of Mexico, petitions

this Court for review of a final removal order entered by the Board of Immigration
 Under INA § 212(h), the Attorney General may, as a matter of discretion, waive the 1

inadmissibility of, among others, an alien convicted of a crime involving moral turpitude

if “it is established to the satisfaction of the Attorney General that the alien’s denial of

admission would result in extreme hardship to the United States citizen or lawfully

resident spouse, parent, son, or daughter of such alien[.]” 8 U.S.C. § 1182(h)(1)(B). 

Juarez-Gonzalez has two United States citizen minor children. He does not reside with

the children or their mothers, but he has established that he provides some financial

support to each child.

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Appeals (“BIA”). For the reasons that follow, we will deny the petition for review. 

I.

Juarez-Gonzalez entered the United States without permission in 1993 at

the age of seventeen. In 1997, he became a lawful permanent resident. On January 3,

2003, the Superior Court of New Jersey, Hudson County, convicted Juarez-Gonzalez

following his plea of guilty to one count of criminal restraint in the third degree in

violation of N.J. Stat. Ann. § 2C:13-2, for which he was sentenced to three years of

probation. In 2006, Juarez-Gonzalez departed the United States for a short time and,

upon return, the Department of Homeland Security charged him as removable under 8

U.S.C. § 1182(a)(2)(A)(i)(I) for having been convicted of a crime involving moral

turpitude. Before the Immigration Judge (“IJ”) Juarez-Gonzalez conceded his

removability on the ground charged and applied for a waiver of inadmissibility under

INA § 212(h), 8 U.S.C. § 1182(h).1

The IJ determined that Juarez-Gonzalez’s conviction for criminal restraint

constitutes a “violent or dangerous crime,” a point that Juarez-Gonzalez’s counsel did not
 8 C.F.R. § 1212.7(d) provides in relevant part: 2

The Attorney General, in general, will not favorably exercise

discretion ... to consent to an application ... for ... admission to

the United States ... with respect to immigrant aliens who are

inadmissible under [8 U.S.C. § 1182(a)(2)] in cases involving

violent or dangerous crimes, except in extraordinary

circumstances, such as ... cases in which an alien clearly

demonstrates that the denial of the application for ...

admission as an immigrant would result in exceptional and

extremely unusual hardship.

8 C.F.R. § 1212.7(d); see also 8 C.F.R. § 212.7(d) (setting forth same provision).

3

dispute. A.R. at 48-50, 154-55. As a result of this finding, the IJ held that JuarezGonzalez could not qualify for a § 212(h) waiver unless he made a heightened showing of

an “exceptional and extremely unusual hardship” to his citizen children, in accordance

with 8 C.F.R. § 1212.7(d). The IJ held that Juarez-Gonzalez failed to show the requisite 2

hardship based on the evidence presented.

Juarez-Gonzalez retained new counsel and appealed to the BIA. He listed

three issues for review in his notice of appeal: (1) the IJ used an incorrect legal standard

in determining whether Juarez-Gonzalez met the burden of proof for a waiver of

inadmissibility; (2) the IJ failed to consider material evidence that supported a waiver,

and gave improper weight to immaterial evidence, and (3) the IJ considered facts not in

evidence, erred in assuming facts, and denied “a full and fair hearing.” A.R. at 34. In his

brief to the BIA, Juarez-Gonzalez argued that the IJ erred (1) in finding that he committed

a violent or dangerous crime without first examining New Jersey law regarding the
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elements of the offense, (2) in choosing to apply the exceptional and extremely unusual

hardship standard rather than the lesser extreme hardship standard, and (3) in its

discretionary analysis of the factors for a waiver set forth in Matter of Marin, 16 I & N

Dec. 581 (BIA 1978).

The BIA dismissed the appeal, agreeing with the IJ that Juarez-Gonzalez

does not merit a § 212(h) waiver. It observed that Juarez-Gonzalez’s brief did not address

his claims that the IJ had failed to consider certain evidence and had denied a full and fair

hearing, which had been listed as issues for review in the notice of appeal. The BIA held

these issues waived and, alternatively, summarily dismissed them. Turning to the merits

of the § 212(h) request, the BIA explained that, where an alien has been convicted of a

violent or dangerous crime, he or she must show an exceptional and extremely unusual

hardship under 8 C.F.R. § 1212.7(d) to qualify for a waiver. The BIA held that JuarezGonzalez committed a violent or dangerous crime. It noted that Juarez-Gonzalez’s

counsel had conceded that point before the IJ, which the BIA viewed as a binding judicial

admission and a waiver of the issue. Moreover, the BIA reviewed the statute of

conviction and case law interpreting it, and it concluded on the merits that JuarezGonzalez’s crime, “at a minimum, qualifies as a dangerous crime.” A.R. at 3. It

observed that, even if non-violent, “criminal restraint must be imposed against the will of

the victim and pose a danger to the victim.” Id. at 4. Finally, the BIA affirmed the IJ’s

determination that Juarez-Gonzalez failed to show an exceptional and extremely unusual
5

hardship. Juarez-Gonzalez timely filed this petition for review.

II.

We must first consider our jurisdiction over the petition for review. See

Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d Cir. 2005) (“We begin, as we always

must when reviewing agency determinations, with a determination of whether we have

subject matter jurisdiction to consider [petitioner]’s claims.”). As the Government

correctly notes, we lack jurisdiction to review the discretionary decision to deny a waiver

of inadmissibility under § 212(h). See 8 U.S.C. § 1252(a)(2)(B)(i); Mendez-Moranchel v.

Ashcroft, 338 F.3d 176, 179 (3d Cir. 2003). However, we retain jurisdiction insofar as

the petitioner seeks review of constitutional claims or questions of law. See 8 U.S.C.

§ 1252(a)(2)(D); Jarbough v. Att’y Gen., 483 F.3d 184, 188 (3d Cir. 2007).

Juarez-Gonzalez raises two arguments in this Court. First, he contends that

the BIA should have applied a categorical analysis to determine whether his conviction

for criminal restraint is a crime involving moral turpitude, which Juarez-Gonzalez seems

to view a predicate finding to a determination of whether the crime is violent or

dangerous under § 1212.7(d). As we understand this first argument, Juarez-Gonzalez is

asking this Court to review both the determination that his offense constitutes a crime

involving moral turpitude, and the determination that his offense is a violent or dangerous

crime. Second, Juarez-Gonzalez contends that he was denied due process because his

prior counsel allegedly provided ineffective assistance by conceding two critical issues
 “A claim of ineffective assistance of counsel in removal proceedings is cognizable 3

under the Fifth Amendment – i.e., as a violation of that amendment’s guarantee of due

process.” Fadiga v. Att’y Gen., 488 F.3d 142, 155 (3d Cir. 2007).

6

before the IJ: (1) that the offense was a crime involving moral turpitude, thereby

rendering Juarez-Gonzalez removable as charged, and (2) that the offense is a violent or

dangerous crime, thereby subjecting him to the heightened exceptional and extremely

unusual hardship standard for obtaining a § 212(h) waiver.3

We are satisfied that Juarez-Gonzalez raises legal and constitutional claims

that fall within the scope of our jurisdiction. The Government, for its part, does not seem

to dispute that there is jurisdiction under § 1252(a)(2)(D). It argues, however, that the

petition for review should be dismissed because Juarez-Gonzalez failed to exhaust

administrative remedies in accordance with 8 U.S.C. § 1252(d)(1), and/or because he

waived review before the IJ. Respondent’s Br. at 11-14. Juarez-Gonzalez responds that

the exhaustion requirement is satisfied because the BIA, sua sponte, raised the issue of

counsel’s concession that the crime is violent or dangerous, and it reached the merits on

that question by holding that the crime, at a minimum, is dangerous.

Because “issue exhaustion as required by § 1252(d)(1) is a jurisdictional

rule,” Hoxha v. Holder, 559 F.3d 157, 159 n.3 (3d Cir. 2009), we address that question

before proceeding further. Under § 1252(d)(1), “[a] court may review a final order of

removal only if ... the alien has exhausted all administrative remedies available to the

alien as of right[.]” We have held that “a petitioner is deemed to have exhausted all
7

administrative remedies, and thereby preserves the right of judicial review, if he or she

raises all issues before the BIA.” Lin v. Att’y Gen., 543 F.3d 114, 120-121 (3d Cir. 2008)

(citations and quotation marks omitted). “We do not, however, apply this principle in a

draconian fashion,” id. at 121, and “so long as ... petitioner makes some effort, however

insufficient, to place the Board on notice of a straightforward issue being raised on

appeal, a petitioner is deemed to have exhausted her administrative remedies.” Id.

(quotation marks omitted); see also Hoxha, 559 F.3d at 160 (noting that our case law

“instruct[s] that our focus [in addressing exhaustion] must be on the nature of the notice

provided to the BIA by both the Notice of Appeal and any brief filed with the BIA”).

In Lin, we held that “the BIA’s consideration of an issue is sufficient to

provide us with jurisdiction over that issue” even if the petitioner failed to raise the issue

at any time before the BIA. 543 F.3d at 123 n.7. We noted that “it is within the [BIA]’s

discretion to determine when to dismiss summarily an appeal for lack of specificity and

when the BIA is sufficiently apprised of the applicable issues to entertain the appeal.” Id.

at 124. If the BIA should elect to address an issue on the merits sua sponte (as it did in

Lin), we generally will deem the exhaustion requirement satisfied. Id. at 126.

Applying these principles here, we conclude that Juarez-Gonzalez satisfied

the exhaustion requirement on the question whether his crime is violent or dangerous
 We reject, however, Juarez-Gonzalez’s argument that he satisfied the exhaustion 4

requirement with regard to the IJ’s finding that his offense is a crime involving moral

turpitude. Juarez-Gonzalez conceded that he is removable for having committed a crime

involving moral turpitude; the IJ held him removable on that basis; Juarez-Gonzalez did

not challenge that determination in either his notice of appeal or his brief to the BIA; and

the BIA did not address the issue sua sponte. Consequently, the issue cannot be deemed

exhausted given the absence of any notice to the BIA. While Juarez-Gonzalez argues that

he did, in fact, challenge the moral turpitude finding in his brief to the BIA, the record is

clear that he did not. His argument in the brief was that the IJ’s finding regarding the

violent or dangerous nature of the offense was “arbitrary, subjective, and contrary to”

BIA decisions, and that his offense had to qualify as an aggravated felony under 8 U.S.C.

§ 1101(a)(43)(F) (which defines as an aggravated felony “a crime of violence ... for

which the term of imprisonment [is] at least one year”) in order to justify application of

the exceptional and extremely unusual hardship standard. See A.R. at 13-14. Even a

most generous reading of this argument does not suggest that it put the BIA on notice of a

challenge to the finding that Juarez-Gonzalez is inadmissible and removable because he

committed a crime involving moral turpitude under 8 U.S.C. § 1182(a)(2)(A)(i)(I). Thus,

we lack jurisdiction to review the moral turpitude determination, and we do not address

that issue further. See Wu v. Att’y Gen., 571 F.3d 314, 317 (3d Cir. 2009).

8

under § 1212.7(d). Juarez-Gonzalez argued in his brief to the BIA that the IJ had erred 4

in holding that the offense is violent or dangerous because such a determination can be

made only after a review of the elements of the offense. While the legal theory behind

the argument presented to the BIA differs somewhat from the theory that he now

propounds in this Court, Juarez-Gonzalez made clear that he wished to challenge the

violent or dangerous determination. The BIA, moreover, addressed that determination on

the merits and held that the crime, at a minimum, is dangerous. Although it noted that

counsel had conceded that finding before the IJ, the BIA chose to address the issue, and

its discussion of the merits reflects that it was “sufficiently apprised of the applicable

issue[] to entertain the appeal.” Lin, 543 F.3d at 124. Exhaustion, therefore, having been
 Juarez-Gonzalez’s second claim before this Court – that he was denied due process 5

when counsel, allegedly ineffectively, conceded that the crime was violent or dangerous –

is unexhausted. Juarez-Gonzalez concedes that he did not raise that issue before the BIA,

and the BIA did not address the issue sua sponte. In any event, the claim fails on the

merits. As will be discussed in the text, the BIA did not err in holding that JuarezGonzalez’s crime is dangerous. Consequently, a due process challenge based on

counsel’s failure to contest that issue is without merit, as Juarez-Gonzalez cannot show

prejudice from counsel’s action. See Fadiga, 488 F.3d at 155 (explaining that alien

claiming denial of due process must show “(1) that he was prevented from reasonably

presenting his case and (2) that substantial prejudice resulted”) (quotation marks omitted).

9

satisfied, we turn to the merits of whether the BIA erred in holding that the offense is

dangerous.5

III.

Where, as here, the BIA agrees with the IJ’s analysis and adds analysis of

its own, we review the decisions of both the BIA and the IJ. See Sandie v. Att’y Gen.,

562 F.3d 246, 250 (3d Cir. 2009). We review factual determinations under the substantial

evidence standard, accepting those determinations as conclusive unless “‘any reasonable

adjudicator would be compelled to conclude to the contrary.’” Id. at 251 (quoting 8

U.S.C. § 1252(b)(4)(B)). Our review of legal determinations is de novo, “subject to

established principles of deference.” Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir. 2004)

(citing Chevron v. Nat. Res. Def. Council, 467 U.S. 837, 844 (1984)). We afford

deference to the agency’s interpretation of its regulations, Zegrean v. Att’y Gen., 602

F.3d 273, 275 (3d Cir. 2010), while “we owe no deference to [its] interpretation of a state

criminal statute.” Partyka v. Att’y Gen., 417 F.3d 408, 411 (3d Cir. 2005).
 To the extent that Juarez-Gonzalez seeks to fault the BIA for failing to apply a 6

“categorical approach,” his argument is rejected. Juarez-Gonzalez cites no authority for

the proposition that the BIA must apply a categorical approach when analyzing whether a

crime is violent or dangerous within the meaning of 8 C.F.R. § 1212.7(d). In any event,

the BIA here looked to the language of the statute of conviction, and not to JuarezGonzalez’s conduct, in asking whether his crime is violent or dangerous, and its analysis

essentially comported with the type of categorical approach that Juarez-Gonzalez

advocates. See Partyka, 417 F.3d at 411 (discussing categorical approach as applied to

determine whether crime involves moral turpitude). While Juarez-Gonzalez speculates

that the BIA might have conducted “a more thorough categorical analysis” had it not been

for his counsel’s concession before the IJ that the crime is violent or dangerous,

Petitioner’s Br. at 19, such speculation does not warrant a remand of this matter.

10

Juarez-Gonzalez challenges the BIA’s analysis of the statute under which

he was convicted, suggesting that New Jersey law leaves open the possibility that his

offense is not a dangerous crime, and therefore not within the purview of § 1212.7(d). 

See Petitioner’s Br. at 19. We discern no reversible error.6

The New Jersey statute outlawing criminal restraint provides in relevant

part that “[a] person commits a crime of the third degree if he knowingly ... [r]estrains

another unlawfully in circumstances exposing the other to risk of serious bodily injury[.]” 

N.J. Stat. Ann. § 2C:12-2(a). New Jersey courts recognize that “criminal restraint

functions as a lesser included offense of kidnapping,” State v. Savage, 799 A.2d 477, 492

(N.J. 2002), and the offense differs from, and is more serious than, false imprisonment in

that criminal restraint in the third-degree “requires that the restraint be in circumstances

exposing the other to risk of serious bodily injury.” Id. at 494 (quotation marks omitted).

Juarez-Gonzalez has not shown that it is inconsistent with § 1212.7(d) to
 We note that Juarez-Gonzalez raises no challenge in this Court to the validity of 7

§ 1212.7(d), and thus we do not address any such issue.

11

define his offense as dangerous. Under § 2C:12-2(a), Juarez-Gonzalez pled guilty to a

crime in which he acted against the will of his victim through restraint and exposed the

victim to a risk of serious bodily injury. Even assuming, as the BIA did, that the crime is

non-violent, but cf. United States v. Parson, 955 F.2d 858, 873 (3d Cir. 1992) (holding

that violation of Delaware’s reckless endangerment statute constitutes “crime of violence”

for purposes of U.S.S.G. § 4B1.1), the danger inherent in the offense, through the risk of

serious bodily injury to the victim, is apparent. Juarez-Gonzalez offers no plausible

interpretation to the contrary. 

The Attorney General adopted § 1212.7(d) to aid in the consideration of

waiver applications, and in particular to guide the agency’s exercise of discretion in

deciding whether to consent to an inadmissible alien’s request for admission. See

Samuels v. Chertoff, 550 F.3d 252, 257 (2d Cir. 2008) (explaining that “in promulgating

Section 1212.7(d), the Attorney General exercised the authority given to him by Congress

to set the standards that will guide the exercise of discretion that follows after the alien

shows ‘extreme hardship’”); Mejia v. Gonzales, 499 F.3d 991, 996 (9th Cir. 2007) (noting

that Attorney General “promulgated [the] regulation to guide IJs in the way they exercise

their relatively unfettered grant of discretion after the statutory requirements are met”).7

As such, § 1212.7(d) distinguishes aliens who commit “violent or dangerous crimes” and
requires them to make a heightened showing of an exceptional and extremely unusual

hardship. As one court has observed, “[t]he heightened standard is rationally related to

the national immigration policy of not admitting aliens who could be a danger to society.” 

Mejia, 499 F.3d at 996. We cannot conclude here that BIA contravened this policy, or

exceed its authority, in determining that Juarez-Gonzalez’s crime is a dangerous one. 

Consequently, it did not err in requiring him to show an exceptional and extremely

unusual hardship as a prerequisite to a § 212(h) waiver.

IV.

For the foregoing reasons, we will deny the petition for review. This

Court’s Order provisionally staying Juarez-Gonzalez’s removal is hereby vacated.

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