UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ ANA ABIGAIL SOSA-TALAVERA, Petitioner,

v. MERRICK B. GARLAND, United States Attorney General, Respondent. No. 22-9534 (Petition for Review)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , KELLY , and BACHARACH , Circuit Judges.

________________ _________________ Ana Abigail Sosa-Talavera petitions for review of a decision by the Board of Immigration Appeals (BIA). She argues th e BIA applied the wrong burden of proof and provided an inadequate explanation in denying a remand to the Immigration Judge (IJ) for further proceed ings regarding her request for post-conclusion voluntary departure. Because we lack jurisdiction to review the is sues she raises, we dismiss her petition for review.

* After examining the briefs and appella te record, this pa nel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### March 29, 2023 Christopher M. Wolpert Clerk of Court Appellate Case: 22-9534 Document: 010110834562 Date Filed: 03/29/2023 Page: 12 I. Background Ms. Sosa-Talavera is a native and citizen of Honduras. She illegally entered the United States on August 22, 2014, and was served with a notice to appear (NOA) the following day. After conceding the ba sis for removal, she applied for asylum, withholding of removal, protection unde r the Convention Against Torture, and post-conclusion voluntary de parture under 8 U.S.C. § 1229c(b). Her petition for review addresses only the deni al of voluntary departure. Under § 1229c(b)(1), an alien may be permitted to depart the United States voluntarily at her own expense if, at the conclusion of a proceeding under 8 U.S.C. § 1229a, the IJ grants voluntary departure in lieu of removal and makes the following four findings: (A) the alien has been physically presen t in the United States for a period of at least one year immediately preceding the date the notice to appear was served under section 1229(a) . . . ; (B) the alien is, and has been, a person of good moral char acter for at least 5 years immediately preceding the alien’s application for voluntary departure; (C) the alien is not deportable under [8 U.S.C. §§] 1227(a)(2)(A)(iii) or . . . 1227(a)(4) . . . 1 ; and (D) the alien has established by clear a nd convincing eviden ce that the alien has the means to depart the Unite d States and intends to do so. Id.

1 The referenced statutory sections provide for removal based upon an aggravated felony, see § 1227(a)(2)(A)(iii), or base d upon security or related grounds, see § 1227(a)(4). Appellate Case: 22-9534 Document: 010110834562 Date Filed: 03/29/2023 Page: 23 At her merits hearing before the IJ, Ms. Sosa-Talavera addressed the stop-time rule in § 1229c(b)(1)(A), whic h required her to show she ha d been physically present in the United States for at least one year before she was served with the NOA. Acknowledging she was served almost immedi ately after entering the United States, she argued that, under Pereira v. Sessions , 138 S. Ct. 2105, 2114- 16 (2018), service of the NOA did not stop the accrual of her period of physical pr esence because the NOA failed to specify the time and place of her rem oval hearing, as required by 8 U.S.C. § 1229(a)(1)(G)(i). Ms. Sosa-Talavera did not te stify at the hearing, or point to other evidence, regarding her means to depart the United States and her intention to do so,

see § 1227c(b)(1)(D). Citing a then-current BIA decision, the IJ ruled that Ms. Sosa-Talavera was ineligib le for post-conclusion voluntar y departure because a later notice of hearing served upon her ha d cured the defect in the NOA. In her BIA appeal, Ms. Sosa-Talavera c ontinued to argue that the defective NOA did not stop the accrual of her period of physical presence in the United States for purposes of post-conclusion volunt ary departure. In addition to Pereira , she cited the Supreme Court’s more recent decision in Niz-Chavez v. Garland , 141 S. Ct. 1474, 1485-86 (2021), holding that al l of the requirements for an NOA in § 1229(a) must be contained in a single document to trigger a different stop-time rule. 2 She argued she

2 Pereira and Niz Chavez addressed the sufficiency of an NOA to trigger the stop-time rule applicable to cancellation of removal under 8 U.S. C. § 1229b(d)(1). See Matter of M-F-O- , 28 I. & N. Dec. 408, 415-16 (B.I.A. 2021). After Ms. Sosa-Talavera filed her BIA appeal brief, the BIA held that subsequent service of a notice of hearing does not cure a defi cient NOA, which consequently “does not (continued) Appellate Case: 22-9534 Document: 010110834562 Date Filed: 03/29/2023 Page: 34 was therefore statutorily elig ible for post-conclusion vol untary departure because she had accrued more than one year of physical presence in the Un ited States, and she asked the BIA to “remand[] to the IJ for consideration of such relief.” R. at 36. Ms. Sosa-Talavera did not address in her BIA appeal any of the other statutory requirements, including whether she had established by clear and convincing evidence that she has the means to depart the United States a nd intends to do so,

see § 1229c(b)(1)(D). The BIA dismissed Ms. Sosa-T alavera’s appeal. It affi rmed the IJ’s denial of voluntary departure on differe nt grounds, concluding that she “ha[d] not identified any evidence or testimony wh ich establishes, by clear a nd convincing evidence, that she has the means to depart th e United States and intends to do so.” R. at 4. The BIA further concluded that Ms . Sosa-Talavera “ha[d] also not articulated sufficient facts, supported by the record, to wa rrant remanded proceedings for further consideration of her claims.” Id. (citing Matter of Coelho , 20 I. & N. Dec. 464, 472 (B.I.A. 1992) (setting forth grounds fo r denial of a motion to reopen)).
II. Discussion Because a single member of the BIA d ecided Ms. Sosa-Talav era’s appeal, “we review the BIA’s decision as the final agency determina tion and limit our review to issues specifically addressed therein.” Kechkar v. Gonzales , 500 F.3d 1080, 1083 (10th Cir. 2007) (interna l quotation marks omitted).

preclude the [alien] from es tablishing the requisite peri od of continuous physical presence for purposes of [post-conc lusion voluntary departure].” Id. at 417. Appellate Case: 22-9534 Document: 010110834562 Date Filed: 03/29/2023 Page: 45 A. Jurisdictional Limitations Our jurisdiction to review the BIA’s deni al of voluntary departure is limited. First, § 1229c(f) provides that “[n]o court shall have jurisdiction over an appeal from denial of a request for an order of voluntary departure un der [§1229c(b)].” See Ekasinta v. Gonzales , 415 F.3d 1188, 1190 (10th Cir. 2005). Further, under 8 U.S.C. § 1252(a)(2)(B)(i), we lack “jurisdiction to review . . . any judgment regarding the granting of relief under section . . . 1229c.” But § 1252(a)(2)(D) provides that, notwithstanding § 1252(a)(2)(B)(i), we may review “constitutional claims or questions of law” related to voluntary departure decisions. See Kechkar , 500 F.3d at 1083 (holding we can review constitutiona l claims and questi ons of law despite jurisdictional preclusions in §§ 1229c(f) and 1252(a)(2)(B)(i)). We also lack jurisdicti on to review issues that Ms. Sosa-Talavera did not exhaust before the BIA. See Akinwunmi v. INS , 194 F.3d 1340, 1341 (10th Cir. 1999). We can review a final order of re moval only if “the al ien has exhausted all administrative remedies availa ble to the alien as of right. ” 8 U.S.C. § 1252(d)(1). Available administrative reme dies include motions to rec onsider or reopen filed with the BIA. See Sidabutar v. Gonzales , 503 F.3d 1116, 1122 ( 10th Cir. 2007) (holding that “challenge[s] to the BIA’s allege dly de novo [fact]finding” were unexhausted because they “should have been brought befo re the BIA in the fi rst instance through a motion to reconsider or reopen”). The exhaustion rule “give[s] the agency the opportunity to correct its own errors.” Garcia Carbajal v. Holder , 625 F.3d 1233, 1237 (10th Cir. 2010). Appellate Case: 22-9534 Document: 010110834562 Date Filed: 03/29/2023 Page: 56 We therefore lack jurisdic tion in this case unless Ms . Sosa-Talavera raises a constitutional claim or a question of law that she exhausted before the BIA.
B. Merits Ms. Sosa-Talavera does not acknowle dge these jurisdictional limitations, explain how her contentions qu alify as raising c onstitutional claims or questions of law, or indicate with citations to the record where she rais ed her contentions with the
BIA. She first argues the BIA applied an inco rrect evidentiary standard in denying her motion to remand for further consid eration of post-conclusion voluntary departure. She maintains the BIA applie d a clear-and-convincing-evidence standard applicable to an appeal when it should have instead determined whether she had established prima facie eligibility for vol untary departure suffi cient to grant her motion to remand. The government argues the BIA applied the correct evidentiary standard because Ms. Sosa-Talavera did not file a motion to remand but merely sought a remand as a remedy in her appeal. Whether the BIA applied the correct lega l standard is a que stion of law. See Brue v. Gonzales , 464 F.3d 1227, 1232 (10th Cir. 2006). But Ms. Sosa-Talavera did not raise in a motion to reconsider or re open filed with the BIA her contention that the BIA applied an incorrect evidentiary standard when it dismissed her appeal and denied her request for a remand to the IJ. Because she instead ra ises this challenge for the first time in this court, the BIA ha d no opportunity to consider its merit. See Appellate Case: 22-9534 Document: 010110834562 Date Filed: 03/29/2023 Page: 67 Sidabutar , 503 F.3d at 1122. We therefore l ack jurisdiction to review this unexhausted issue. See id. Ms. Sosa-Talavera alternat ively contends that the BIA provided inadequate reasoning in denying her motion to remand for consideration of volun tary departure. She appears to argue that the BIA’s decision is so lacking in analysis that it amounts to an abuse of discretion. C.f. Maatougui v. Holder , 738 F.3d 1230, 1242-43 (10th Cir. 2013) (hol ding the BIA does not abuse its di scretion if its decision is sufficient for meaningful appellate review). Ms. Sosa-Talavera does not explain how this contention raises either a constitutional claim or a ques tion of law. But we need not decide that jurisdictional question b ecause her failure to raise her contention regarding the adequacy of the BIA’s analys is in a motion to r econsider or reopen filed with the BIA deprives us of jurisdiction to review it. See Sidabutar , 503 F.3d
at 1122. 3
III. Conclusion Ms. Sosa-Talavera’s petition for review is dismissed for lack of jurisdiction.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge

3 The government suggests that Ms. Sosa-Talavera may also be raising a constitutional claim based upon the BIA’s de nial of voluntary departure in the absence of a full evid entiary hearing. We decline to construe her appeal brief as asserting such a contention when sh e makes no reference to any alleged constitutional violation. Appellate Case: 22-9534 Document: 010110834562 Date Filed: 03/29/2023 Page: 7