UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

LUIS MANUEL MONT IEL-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 na tive 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 conced ed the charge, but at a hear ing before an immigration judge (IJ), he requested a continuance to se e if the Department of Homeland Security (DHS) would favorably exercise its prosecut orial discretion to terminate his removal

* After examining the briefs and appellate record, this pane l 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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 

### April 23, 2015
Elisabeth A. Shumaker Clerk of Court- 2 - proceedings. The IJ granted the continuanc e, but when the parties reconvened, DHS indicated it had decided not to terminate th e 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 Immi gration Appeals (BIA), raising two arguments. He first claimed the IJ refu sed 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 pr oceedings, which was solely within the prosecutorial discretion of DHS . He also claimed he wa s forced to waive voluntary departure, but the BIA reject ed that argument as well, b ecause, as the re cord clearly indicated, he did not seek voluntary departure. The BIA dismissed the appeal. Montiel-Hernandez insists his due pro cess rights were violated because DHS refused to terminate his case and the agency refused to revi ew that decision. He also claims to have been forced to waive vol untary departure in order to preserve his appeal rights. That is because, under th e governing regulation, he was required to abandon all appellate issues as a condition of seeki ng voluntary departure. See Pet’r Br. at 24 (discussing 8 C.F.R. § 1240.26(b)(1)(i)).- 3 - We will not consider Montiel-Hern andez’s voluntary departure argument because he did not rais e it before the IJ. See Torres de la Cruz v. Maurer , 483 F.3d 1013, 1022-23 (10t h Cir. 2007) (upholding BIA’s waiver rule wh ere alien failed to raise argument before the IJ). Indeed, as the BIA observ ed, he did not even request voluntary departure. In fact, he affirmat ively declined it when the IJ asked if “he [was] interested in voluntary depa rture,” stating, “No, Your H onor. 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 de parture, 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 hi s 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 ag ency should have exerci sed jurisdiction over DHS’s decision not to terminate his ca se. 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 prosecuto rial discretion remains within the sole discretion of the DHS, and therefore, the [IJ] does not have ju risdiction 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 deni ed prosecutorial discretion, see Admin. R. at 76, but he changed course at his final removal hearing.- 4 - v. Holder , 619 F.3d 1264, 1267 (10t h Cir. 2010), and agr ee 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 Ci r. 2001))). Indeed, “[t]he immigration judge is not empowered to revi ew 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 in itiated by the District Director, the immigration judge may not review the wisdom of the District Di rector’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 immigr ation laws, has the sole authority to exercise prosecutorial discre tion 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 pro ceedings, the BIA correc tly rejected this argument. 2

2 To the extent Montiel-Hernandez c ontends DHS abused its discretion in declining to terminate his re moval proceedings, we lack ju risdiction to review this claim. See 8 U.S.C. § 1252(g) (“[N]o court sha ll have jurisdiction to hear any cause or claim by or on behalf of any alien ar ising from the decision or action by the Attorney General to commenc e proceedings, adjudicate ca ses, or execute removal orders against any alie n under this chapter.”); see also Reno v. American-Arab (continued)- 5 - 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 (199 9) (“Section 1252(g) was directed against a particul ar evil: attempts to im pose 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). Alt hough § 1252(g) refers to the Attorney General, it has been applie d to the Secretary of DHS. See Ali v. Mukasey , 524 F.3d 145, 150 & n.5 (2d Cir. 2008).