Javier Contreras Delgado v. Attorney General of the United States

IMG-185 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-2065
___________
JAVIER CONTRERAS DELGADO,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(Agency No. A013-924-138)
Immigration Judge: Honorable Henry S. Dogin
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 14, 2009
Before: RENDELL, GREENBERG and VAN ANTWERPEN, Circuit Judges
(Filed: October 20, 2009)
___________
OPINION OF THE COURT
___________
PER CURIAM
Javier Contreras Delgado petitions for review of the Board of Immigration
Appeals’ (“BIA”) final order of removal. For the following reasons, we will deny his
petition.

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Delgado also sought relief in the form of a waiver of removal under former §1
212(c) of the INA, but the IJ denied relief and the BIA affirmed. Delgado does not
challenge this determination on appeal. (Petitioner’s Br. 4.)
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I.
Delgado, a native and citizen of Colombia, entered the United States as a lawful
permanent resident in 1965. The next year, in November 1966, Delgado was convicted of
larceny under N.J. Rev. Stat.§ 2A:119-1 (repealed) in Union County, New Jersey. Over
the course of the following forty years, Delgado was convicted of shoplifting in New
Jersey four times—in 1973, 1975, 1999, and 2003.
Delgado subsequently left the United States. When he applied for re-admission as
a returning legal permanent resident, he was served with a notice to appear alleging that
he was inadmissible for having committed crimes involving moral turpitude in 1999 and
2003. The government later filed additional charges alleging that he was subject to
removal for the 1966 larceny conviction as well.
At his removal hearing, Delgado conceded removability but sought cancellation of
removal under § 240A(a) of the INA. The Immigration Judge (“IJ”) denied relief,1
explaining in a written decision that Delgado was not eligible for cancellation of removal
because he had not continuously resided in the country for the requisite seven years. See
8 U.S.C. § 1229b. According to the IJ, under the “stop-time” provision, 8 U.S.C. §
1229b(d)(1), Delgado’s years of residence stopped accruing when he committed his first
crime of moral turpitude, and the clock never started anew because there was no evidence

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Because this appeal concerns “constitutional claims or questions of law,” the2
prohibition against appellate review of discretionary determinations does not apply. 8
U.S.C. § 1252(a)(2)(D). However, to the extent that Delgado argues that he was entitled
to cancellation of removal because the discretionary factors weigh in his favor, we lack
jurisdiction. See Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 178 (3d Cir. 2003)
(concluding that, “for nondiscretionary factors, the Court maintains jurisdiction, but as to
discretionary decisions, we lack jurisdiction”).
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that he was lawfully readmitted into the country. On appeal to the BIA, Delgado argued
that the offenses for which he had been convicted could not serve as stop-time
convictions because shoplifting is not a “crime” under New Jersey law. The BIA rejected
this argument and, by order entered March 11, 2008, dismissed the appeal.
Delgado now petitions for review of the BIA’s order.2
II.
On appeal, Delgado argues that the IJ erred in finding that he had failed to meet
the continuous physical presence requirement of Section 240A(a)(2) because, according
to Delgado, the seven-year clock should have been reset when he re-entered the United
States after his 1973 shoplifting conviction. See Okeke v. Gonzales, 407 F.3d 585 (3d
Cir. 2005). Delgado also argues that the IJ failed to conduct a hearing, and the BIA failed
to remand the matter for a hearing, in violation of his due process rights.
Delgado did not, however, raise either of these arguments in his appeal to the BIA.
Instead, Delgado argued only that his convictions for shoplifting could not serve as stop-
time convictions because shoplifting is not a “crime” under New Jersey law.

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(A000008–09; A000015.) Although we recognize a liberal exhaustion policy for
immigration petitioners, we have explained that a petitioner will be deemed to have
exhausted his administrative remedies only if he makes an effort “to place the Board on
notice of a straightforward issue being raised on appeal.” Joseph v. Attorney General of
U.S., 465 F.3d 123, 126 (3d Cir. 2006) (quoting Yan Lan Wu v. Ashcroft, 393 F.3d 418,
422 (3d Cir. 2005) (citing Bhiski v. Ashcroft, 373 F.3d 363, 367-68 (3d Cir. 2004)).
Here, Delgado did nothing to alert the BIA that he wanted it to consider his argument that
the clock should have been reset when he reentered the country in 1973, nor did he object
to the IJ’s failure to hold a hearing on his claims. As a result, the BIA did not consider
these arguments, and we do not have jurisdiction to consider them on appeal. See id.
III.
Accordingly, we will deny the petition for review.

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