Adolfo Ramirez-Puebla v. MERRICK B. GARLAND, United States Attorney General

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
ADOLFO RAMIREZ-PUEBLA,
Petitioner,
v.
MERRICK B. GARLAND,
United States Attorney General,
Respondent.
No. 20-9644
(Petition for Review)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before McHUGH, BALDOCK, and MORITZ, Circuit Judges.
_________________________________
Adolfo Ramirez-Puebla, a native and citizen of Mexico, unsuccessfully sought
cancellation of removal. The immigration judge concluded that he failed to show his
removal would create an “exceptional and extremely unusual hardship” for his
United States-citizen son, as required by 8 U.S.C. § 1229b(b)(1)(D), and the Board of
Immigration Appeals (Board) affirmed. Mr. Ramirez-Puebla now petitions for
review of the Board’s decision, raising a single argument in his opening brief. We
* After examining the briefs and appellate record, this panel 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 This order and judgment is not binding precedent,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
August 10, 2021
Christopher M. Wolpert
Clerk of Court
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dismiss the petition for lack of jurisdiction, however, because he did not first present
that argument to the Board.
Under 8 U.S.C. § 1252(a)(2)(B)(i), this court lacks “jurisdiction to review the
discretionary aspects of a decision concerning cancellation of removal” including
“the determination of whether the petitioner’s removal from the United States would
result in exceptional and extremely unusual hardship to a qualifying relative.”
Galeano-Romero v. Barr, 968 F.3d 1176, 1181 (10th Cir. 2020) (internal quotation
marks omitted). Nevertheless, under § 1252(a)(2)(D), we retain jurisdiction to
review “constitutional claims” and “questions of law.”
Attempting to avoid the § 1252(a)(2)(B)(i) jurisdictional bar, Mr. Ramirez-
Puebla argues that, as a matter of law, the Board should in every cancellation case
evaluate every hardship factor that it has considered in its precedential decisions. He
asserts that this argument addresses the proper legal framework for assessing
hardship claims, and thus it qualifies as a “question of law” we have jurisdiction to
review. 1
In making this argument, however, he ignores another jurisdictional hurdle—
the requirement that he exhaust his arguments before bringing them to this court.
See 8 U.S.C. § 1252(d)(1) (“A court may review a final order of removal only if . . .
1 In his reply brief, Mr. Ramirez-Puebla argues for the first time that this court
should overrule Galeano-Romero and review the Board’s hardship determination
under Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062 (2020). But “[t]he general rule in
this circuit is that a party waives issues and arguments raised for the first time in a
reply brief.” Reedy v. Werholtz, 660 F.3d 1270, 1274 (10th Cir. 2011) (internal
quotation marks omitted). “We see no reason to depart from that rule here.” Id.
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the alien has exhausted all administrative remedies available to the alien as of
right[.]”); Galeano-Romero, 968 F.3d at 1180 n.3 (recognizing when a petitioner
“fail[s] to present [an] argument to the [immigration judge] or Board, it is
unexhausted, and we lack jurisdiction to consider it”). Mr. Ramirez-Puebla did not
argue before the Board that the agency must, in every cancellation case, consider
every hardship factor that the Board’s precedential decisions have identified. Rather,
he identified specific hardship factors and argued that the Board should conclude,
based on those factors, that he satisfied the hardship requirement. Exhaustion
requires “an alien [to] present the same specific legal theory to the [Board] before he
or she may advance it in court.” Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237
(10th Cir. 2010). Because Mr. Ramirez-Puebla did not present his current argument
to the Board, we lack jurisdiction to consider it.
The petition for review is dismissed for lack of jurisdiction.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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