UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

LUIS MANUEL MONTIEL-HERNANDEZ, 

 Petitioner, 

v. 

ERIC H. HOLDER, JR., United States 

Attorney General, 

 Respondent. 

No. 14-9523 

(Petition for Review)

 

ORDER AND JUDGMENT*

 

Before GORSUCH, O’BRIEN, and PHILLIPS, Circuit Judges. 

 

 Luis Manuel Montiel-Hernandez, a native and citizen of Mexico, was charged 

as a removable alien unlawfully present in the United States. See 8 U.S.C. 

§ 1182(a)(6)(A)(i). He conceded the charge, but at a hearing before an immigration 

judge (IJ), he requested a continuance to see if the Department of Homeland Security 

(DHS) would favorably exercise its prosecutorial discretion to terminate his removal 

 

* After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist the determination 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 doctrines of law 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 

April 23, 2015

Elisabeth A. Shumaker 

Clerk of Court
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proceedings. The IJ granted the continuance, but when the parties reconvened, DHS 

indicated it had decided not to terminate the case. Montiel-Hernandez declined to 

seek any relief from removal or voluntary departure, and thus the IJ summarily 

ordered him removed to Mexico. 

 He appealed to the Board of Immigration Appeals (BIA), raising two 

arguments. He first claimed the IJ refused to exercise jurisdiction over DHS’s 

decision not to terminate his case, thereby violating his due process rights. The BIA 

rejected this claim, observing that Montiel-Hernandez did not seek to 

administratively terminate his case or have the IJ review DHS’s refusal to do so; he 

simply requested a continuance to wait for DHS’s decision. See Admin. R. at 76-77. 

The BIA emphasized, however, that the IJ lacked jurisdiction to review DHS’s 

decision not to terminate his removal proceedings, which was solely within the 

prosecutorial discretion of DHS. He also claimed he was forced to waive voluntary 

departure, but the BIA rejected that argument as well, because, as the record clearly 

indicated, he did not seek voluntary departure. The BIA dismissed the appeal. 

 Montiel-Hernandez insists his due process rights were violated because DHS 

refused to terminate his case and the agency refused to review that decision. He also 

claims to have been forced to waive voluntary departure in order to preserve his 

appeal rights. That is because, under the governing regulation, he was required to 

abandon all appellate issues as a condition of seeking voluntary departure. See

Pet’r Br. at 24 (discussing 8 C.F.R. § 1240.26(b)(1)(i)). 
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 We will not consider Montiel-Hernandez’s voluntary departure argument 

because he did not raise it before the IJ. See Torres de la Cruz v. Maurer, 483 F.3d 

1013, 1022-23 (10th Cir. 2007) (upholding BIA’s waiver rule where alien failed to 

raise argument before the IJ). Indeed, as the BIA observed, he did not even request 

voluntary departure. In fact, he affirmatively declined it when the IJ asked if “he 

[was] interested in voluntary departure,” stating, “No, Your Honor. Not at this time.” 

Admin. R. at 81.1

 Moreover, he never claimed he was being forced to choose 

between his appeal rights and voluntary departure, nor did he cite any regulation 

requiring that he waive his appellate issues. Instead, he simply elected to forgo 

voluntary departure, just as he elected not to seek relief from removal, relying instead 

on DHS’s prosecutorial discretion to close his case. As a consequence, the BIA did 

not rule on the voluntary departure argument. Nor will we. See Torres de la Cruz, 

483 F.3d at 1023. 

 He also contends the agency should have exercised jurisdiction over DHS’s 

decision not to terminate his case. But he never asked the IJ to review that decision. 

It would have been futile in any event. The BIA has here correctly emphasized “the 

decision to exercise prosecutorial discretion remains within the sole discretion of the 

DHS, and therefore, the [IJ] does not have jurisdiction to review the DHS’s decisions 

on this matter.” Admin. R. at 3. We review this legal conclusion de novo, Dallakoti 

 

1

 Montiel-Hernandez had conditionally requested voluntary departure at his 

previous hearing if DHS denied prosecutorial discretion, see Admin. R. at 76, but he 

changed course at his final removal hearing. 
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v. Holder, 619 F.3d 1264, 1267 (10th Cir. 2010), and agree the agency lacked 

jurisdiction to review DHS’s decision, see Cortez-Felipe v. INS, 245 F.3d 1054, 1057 

(9th Cir. 2001) (holding that IJ and BIA lack jurisdiction to review discretionary 

decisions regarding when and whether to initiate removal proceedings (citing 

Barahona-Gomez v. Reno, 236 F.3d 1115, 1119-20 (9th Cir. 2001))). Indeed, “[t]he 

immigration judge is not empowered to review the wisdom of [DHS] in instituting 

the proceedings.” Lopez-Telles v. INS, 564 F.2d 1302, 1304 (9th Cir. 1977) 

(per curiam); see also Matter of Quintero, 18 I. & N. Dec. 348, 350 (BIA 1982) 

(“Once deportation proceedings have been initiated by the District Director, the 

immigration judge may not review the wisdom of the District Director’s action, but 

must execute his duty to determine whether the deportation charge is sustained by the 

requisite evidence in an expeditious manner.”). This is because DHS, as the federal 

agency charged with enforcing the immigration laws, has the sole authority to 

exercise prosecutorial discretion in immigration cases. See 8 U.S.C. § 1103(a). 

Because the IJ and BIA had no authority to review DHS’s discretionary prosecutorial 

decision to keep this case in removal proceedings, the BIA correctly rejected this 

argument.2

 

 

2

 To the extent Montiel-Hernandez contends DHS abused its discretion in 

declining to terminate his removal proceedings, we lack jurisdiction to review this 

claim. See 8 U.S.C. § 1252(g) (“[N]o court shall have jurisdiction to hear any cause 

or claim by or on behalf of any alien arising from the decision or action by the 

Attorney General to commence proceedings, adjudicate cases, or execute removal 

orders against any alien under this chapter.”); see also Reno v. American-Arab 

(continued) 
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The petition for review is denied. 

 Entered for the Court 

 

 Terrence L. O’Brien 

 Circuit Judge 

 

Anti-Discrimination Comm., 525 U.S. 471, 485 n.9 (1999) (“Section 1252(g) was 

directed against a particular evil: attempts to impose judicial constraints upon 

prosecutorial discretion.”); Luevano v. Holder, 660 F.3d 1207, 1210 n.2 (10th Cir. 

2011) (noting that court lacked jurisdiction to review discretionary decision to bring 

removal proceedings against alien). Although § 1252(g) refers to the Attorney 

General, it has been applied to the Secretary of DHS. See Ali v. Mukasey, 524 F.3d 

145, 150 & n.5 (2d Cir. 2008).