Denicia Roberts v. Mark Berry

United States Court of Appeals
For the Eighth Circuit
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No. 24-1532
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Giobel Fonseca Canete
lllllllllllllllllllllPetitioner
v.
James R. McHenry, III,1 Acting Attorney General of the United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Department of Homeland Security
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Submitted: February 3, 2025
Filed: February 6, 2025
[Unpublished]
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Before LOKEN, KELLY, and ERICKSON, Circuit Judges.
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PER CURIAM.
Giobel Fonseca Canete petitions for review of a final order of removal issued
by the Department of Homeland Security pursuant to 8 U.S.C. § 1228(b). Canete
asserts that he was denied certain procedural safeguards required under section
1Acting Attorney General McHenry is automatically substituted for his
predecessor under Federal Rule of Appellate Procedure 43(c)(2).

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1228(b) and its related regulations, and thus deprived of due process and the ability
to seek relief from removal. The government asserts that Canete was provided the
process he was due, and he failed to exhaust his administrative remedies regarding
due process or an entitlement to relief.
This court has jurisdiction to review constitutional claims and questions of law.
See 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1252(a)(2)(C)-(D); Aguilar-Sanchez v. Garland,
87 F.4th 878, 880 (8th Cir. 2023) (de novo standard of review). Having carefully
reviewed the record and the parties’ argument on appeal, we conclude that Canete
was adequately advised of his rights under section 1228(b),2 and failed to exhaust his
administrative remedies. See Santos-Zacaria v. Garland, 598 U.S. 411, 417–23
(2023) (holding exhaustion requirement in 8 U.S.C. § 1252(d)(1) is not jurisdictional,
but is a claim-processing rule that may be forfeited or waived); Gonzalez v. Chertoff,
454 F.3d 813, 816 (8th Cir. 2006) (failure to raise due process concerns in timely
response to Notice of Intent to Issue Final Administrative Removal Order is a failure
to exhaust administrative remedies). Further, even assuming Canete could establish
a fundamental procedural error in the removal proceedings, he has not met his burden
to show that any error resulted in actual prejudice. See Uzodinma v. Barr, 951 F.3d
960, 966 (8th Cir. 2020) (to establish due process violation, noncitizen must show (1)
a fundamental procedural error, and (2) resulting prejudice); Agha v. Holder, 743
F.3d 609, 618 (8th Cir. 2014) (prejudice in context of due process violation requires
showing that outcome of proceeding “may well” have been different absent any
procedural irregularities).
Accordingly, we deny the petition for review.
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2To the extent Canete requests that the court consider facts outside the
administrative record, we decline to do so. See 8 U.S.C. § 1252(b)(4)(A) (appellate
court “shall decide” petition for review on administrative record on which order of
removal is based); Lukowski v. INS, 279 F.3d 644, 646 (8th Cir. 2002) (“judicial
review is limited to the administrative record”).
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