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
10-19-2004 

# S eegobin 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 ock e t N o . 03-3150

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w . v i l l a no v a . e du/thir dc ir c uit_2004

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w . v i l l a no v a . e du/thir dc ir c uit_2004/2141 NOT PRECEDE NTIAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT

No. 03-3150

RA ME SH SEE GO BIN Appellant

v. JOHN AS HCROFT , A TTORNE Y GENERAL

On petiti on for revi ew of a final or der of the Bo ard o f Imm igration Ap peals File No: A72-502- 146

Submitte d pursuant

to Third Ci rcuit

LAR 34.1(a) on: October 1, 2004 Be for e: R EN DE LL , FU EN TE S, and SM ITH , Circuit

Judges (Fil ed: October

19, 2004)

____________________ OPINI ON OF THE COURT

_____________________ Fu ente s, Circuit

Judge

.* 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 bur eaus, 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 Petiti oner Ram

esh Seegobin challe

nges a fina

l order of r

emoval issued by the Board of Im

migra tion Appeal s (“BIA” ) in June 2003. The BIA reve rsed the imm igrati on judge’s gra

nt of a hards hip waiver

under Sect

ion 216(c)(4)(C) of the

Imm igrati on and Nati onality

Act ( “INA” ). W e will deny the pe tit ion for revi ew. I. As we writ

e solel y for the part ies, we limit our rec itati on of the fact s to the procedura

l histor y necessa ry to our dete

rmina tion. The Immigrat

ion and Naturalization Service * (“INS”) initiate d removal proceedings against Seegobin, a citiz en of Canada, on February 10, 1999. In its Notice to Appear, th e INS alleged th at Seegobin was removable f rom the United S tates because he becam e a lawful perma nent res ident on a c onditional basis on Fe

bruary 22, 1996 based on hismarr

iage to Devicara

nie Pards i, but hisapplica tion to re move the conditiona

l nature of the perm

anent re sidence

was denie d by t

he Distr ict Dir ector on Decem ber 21, 1998. I

n his init ial Mas ter Calendar Hea

ring before

the im migra tion judge, P etitioner admitted tho se facts but asserted that he was entitled to a review of his3

claim of a waiver of the joint filing requirement. The imm igration judge in fact granted that waiver on July

20, 1999. The INS a

ppealed t he imm igrati on judge’s dec ision to t he BIA, which r

everse d on June 27, 2003. The BIA f ound th at Seegobin had not en tered into his marriage with Pardsi in good faith and ordered his deportation. Petitioner filed a Notice of Appeal to this Court on July 24, 200 3. On Au gust 21, 2 003, Petitio ner filed a motion for a stay of removal; this Court denied hismotion for

a stay on August 27, 2003. Seegobin was r emoved fr

om the United S tates on Aug ust 28, 20 03. On A ugust 29 , 2003, P etitioner filed a motio n to reopen and r

emand hi s procee dings with t he BIA. The BI

A denied See gobin’s m

otion after determining that it had been withdrawn as a result of his re moval. See 8 C.F.R. § 1003.2(d). II. The parti es disa

gree asto the sc ope of Petit ioner’sappeal t

o this Court . Although Petitioner remarks in his brief that the BIA’s denia l of his motion to reopen was consolida ted for review toget

her with r eview of the

BIA’s orde

r of rem oval, the re is no indication th at Seegobin in fact petition ed for rev iew of the B IA’s denial of his motion to reopen. See Pet. Brief. at 1. As the BIA’s denia l of Seegobin’s motion to reopen was subject to in dependen t review, it was no t “automatically” appealed and co nsolidated w ith Seegobin ’s petition fo r review of the BIA’s ord er of removal. See Bak v. INS , 682 F.2d 441, 442 (3d Cir . 1982) (“The general rule isthat a m

otion to re open deporta

tion4

proceedings is a new, independently reviewable order within the jurisdict ion of the court of appeals.”). Accordingly , our discussion is lim ited to the BIA’s June 2003 Order. Seegobin ra

ises t hree is sues in hi s petit

ion to thisCourt. Fir st, he a rgues tha t the BIA improperly

considered certain evidence in its reversal of the im migration judge’s finding that

Seegobin had entered into his marria ge with a United Stat

es cit izen in good faith and t

hat she e ither ba ttere d him or s ubjected him to ext reme cruelt y. Second, Seegobin contends that the BIA erred in not considering his eligibility for voluntary de pa rt ur e o r c an ce ll at io n o f r em ov al as al te rn at iv es to fo rc ib le re mo va l. Fi na ll y, Seegobin propos es gener ally that the BIA erre d in deter

mining t hat Seegobin does not merit a har

dship waiver under INA § 216(c)(4)(C). III. Petitioner Seegobin’s first two argum ents on appeal, based on allegedly improper admission of ev idence and failure to con sider alternative relief , are barred at this late stage bec ause

he failed t

o exha ust hi s adm

inis tra tive rem edie s as requi

red by INA § 242(d )(1), 8 U.S.C . § 1252 (d)(1). See Abdulra hman v. A shcroft , 330 F.3d 587, 594-95 (3d Cir. 2003) (“[A]n alien is required to raise and exhaust his or her remedies a s to each claim or ground for relief if he or she is t o preserve the right of judicial review of that claim.” ). Petitioner did not raise the issues regarding evidence and alt ernative relief that he raises befo re this Court in his brief to th e BIA. The B IA’s failure to address these issues in its decision was the direct resu lt of Petition er’s failure to raise th em. Cf. INS v.5

Ventura , 537 U.S . 12, 14 (2 002) (ho lding that circu it court shou ld have remand ed case to BIA rathe r than dec ide iss ue de novo, wher e BIA expli citly

decided t hat it need not address the issue). Respondent is correct that, in order to preserve his right of appeal, Petit ioner had to raise his cla

ims concerning im

proper admission of evidence and alternat ive relief before the BIA even th ough h e prevailed b efore the immigration j udge. See Alleyne v. INS , 879 F.2d 1177, 11 82 (3d Cir.1989) (noting that the exhaustion requirement “bars consideration of particular questi ons not raised in an appeal to the Board”). Petitioner did not h ave to file a pr otective Notice o f Appeal, b ut he did n eed to raise the issue s in his pleading s in oppo sition to the IN S’ appeal. Cf

. Winston by

Winston v. Children & Youth Servcs. , 948 F.2d 1380 (3d Cir. 1991) (holding that an issue was precluded because “[e]ven if a cross-appeal wasnot technically necessary ...defendants did not even argue [the issue] in their b rief on app eal.”); Wisnie wski v. Johns-Mansv ille Cor p. , 812 F.2d 81 , 88 (3d C ir.1987) (“A n issue that is no t addressed in an appellant's brief is deemed waived on appeal.” ). It is one thing for an alien not to con test unfavo rable evidenti ary

rulings a nd unaddress ed grounds for r elief when she is gr

anted the relief she desires on oth er ground s. It is quite anoth er for the alien to be passive o n those issues in the face of an appeal to the BIA by t he INS. Once an appeal was in motion, Petit ioner’s arguments regarding judicial e conomy a nd undue hardship lost any bearing. At that point, it was incumbent on Petitioner t o develop all issues and argumentsbefore the BIA6

on the bases o f which h e could avo id forcible re moval from the Un ited States. Petitioner points out that, as t he appealing party , the INS “formulated” the i ssues before the

BIA. But the

evidenti ary

issuesSeegobin now ra

ises be ar directly

on the primary issue that was on app eal before th e BIA, i.e., his eligib ility for a hardship waiv er. Even Petitioner’s claim

for alternative relief relates t o the ultimate quest

ion that was before the BIA, i.e. wheth er to forcibly remove Seeg obin fro m the United States. Because Seeg obin failed to raise his present o bjections b efore the BI A even in th e course of proceedings that jeopardized and ultimatel y reversed his hardship waiver, the Court lacks jurisdictio n to review th ose issues. The require ment that Petitioner ex haust his claims befo re appealing them to this Court appli es even t

hough Petiti oner cla

ims t he BIA’s pr

ocedural errorsviolate d his right to due pro cess. The mere allegation of such a v iolation of due proce ss will not save th is Court’s jur

isdict ion. As the

9th Circuit recently

held, “[i ]f an alle ged procedur al err or could have been challenged before the BIA and was not, we lack jurisdiction to review it.” Silva-Cald eron v. Ashcro ft , 358 F.3d 1175, 11 78 (9th Cir. 2004). Petitioner also argues t

hat INA § 242(d)(1) does not apply because he att empted to rais e his unexha

usted cl aimsbefore the

BIA in the for

m of a m otion to re open. The BIA refused to hear that motion on the me rits because the Pet

itioner had already

been removed fro m the United States at th at point. See 8 CFR § 1003.2. Peti tioner i s right that he woul d have been a ble to ra ise thos e issue s had he not been rem oved by the7

Department of Homeland Securit y. But his r

emoval was lawful – indeed, this Court denied Pet

itioner ’s mot

ion for a st

ay of remova

l – and Petitioner offe

rs no rea son why this Court should forec lose it s norma l legal effect. Seegobin coul d have avoide d the preclusive effect of the timing of his remov al by submitting his motion to reopen pr ior to his removal, or better (and as sugg ested above) , by raising all relevant issues in re sponse to the INS’ appeal to the BIA. The mere fact that Seegobin obtained new counsel does not exempt him fro m the exhaustion requirements of INA § 24 2(d)(1). Th ose requirements bar

our review of Petitioner’s claims regarding alle gedly im proper admission of ev idence and alternatives to fo rcible removal. IV. The third i ssue befor

e this Cour

t is whet her the BI

A properly

denied See gobin a hardship wa

iver under

INA § 216(c)(4)(C). Al

beit im plicit ly , Seegobin a

ppeals t he Board’s ove

rall finding that he

has not m

et his bur den of esta

blishing t hat his s econd marriage was entered in to in goo d faith and is therefore in eligible for a h ardship waiv er. However, we lack jurisdiction over the question of whether the BIA properly exercised its discreti on in refusing to extend Seegobin a hardship waiver. Pursuant t

o INA § 242(a)( 2)(B)(ii), we m ay not review decisi ons or act ions of the Attorney Gener

al which are specifically left to the sole discret ion of the Attorney General under Subchapter II of Chapter 12 of Title 8. 8 U.S.C. § 1252(a)(2)(B). That subchapter includesSection 216( c)(4), 8 U.S.C. § 1186a( c)(4), which provide s the conditions for8

hardship w aivers. See Urena-Ta varez v. Ashcroft , 367 F.3d 154, 161 (3d Ci r. 2004) (holding tha

t 8 U.S.C. § 1252( a)(2)(B)(ii) bars review of the di scret ionary denial of waivers und er 8 U.S.C. § 1186a(c) (4)). See also Spencer Enterprises, Inc. v. United States , 345 F.3d 683, 690 (9t h Cir. 2003). Section 216( c)(4) not only provides t

hat the Attorney General may grant per manent reside ncy under a har

dship exce

ption “in t

he Atto rney Ge nera l’s d iscre tion ” bu t also spec ific ally pro vid es th at in dete rmini ng e xtre me hardship, “[t]he determinat ion of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of the Atto rney General.” 8 U.S.C . § 1186a(c)(4). Since Petitioner suggestsno ground for reversal of the BIA’s decision other than a re -evalua

tion of the credibility

and/or wei ght of the evi dence on re cord, we ha ve no jurisdiction to review the BI A’s exer cise of its disc

retion. For the fore going r

eas ons, w e will deny

the pe tit ion for revi ew.