Gary Smith v. Warden Jeffie Walker

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 24-3153
___________________________
Esdras Elias De La Cruz Gomez
lllllllllllllllllllllPetitioner
v.
Pamela Bondi, Attorney General of the United States
lllllllllllllllllllllRespondent
____________
Petition for Review of an Order of the
Board of Immigration Appeals
____________
Submitted: July 2, 2025
Filed: July 11, 2025
[Unpublished]
____________
Before SMITH, KELLY, and KOBES, Circuit Judges.
____________
PER CURIAM.
Guatemalan citizen Esdras Elias De La Cruz Gomez petitions for review of an
order of the Board of Immigration Appeals (BIA). The BIA rejected De La Cruz
Gomez’s requests to remand or terminate the proceedings so that he could pursue
cancellation of removal and because the agency lacked jurisdiction based on Pereira
v. Sessions, 585 U.S. 198 (2018). The BIA also dismissed De La Cruz

-- 1 of 2 --

Gomez’s appeal from an immigration judge’s (IJ’s) decision denying him asylum,
withholding of removal, and protection under the Convention Against Torture
(CAT).
The BIA concluded that De La Cruz Gomez’s request to terminate proceedings
was foreclosed by precedent, and denied remand to pursue cancellation of removal
because De La Cruz Gomez had neither applied for, nor otherwise shown, that he was
eligible for the relief. The BIA further concluded that De La Cruz Gomez’s requests
for asylum, withholding of removal, and CAT protection had been waived, because
he did not meaningfully challenge dispositive reasons the IJ provided for denying the
relief.
We conclude that De La Cruz Gomez’s challenge to the agency’s jurisdiction
over his removal proceedings is foreclosed by this court’s precedent. See Ali v. Barr,
924 F.3d 983, 985-86 (8th Cir. 2019); Tino v. Garland, 13 F.4th 708, 709 n.2 (8th Cir.
2021) (per curiam). As for asylum, withholding of removal, CAT protection, and
cancellation of removal, we conclude that the claims are unexhausted and waived,
and we find no basis for reversal. See Santos-Zacaria v. Garland, 598 U.S. 411, 423
(2023) (exhaustion requirement in 8 U.S.C. § 1252(d)(1) is non-jurisdictional
claim-processing rule subject to waiver or forfeiture); Essel v. Garland, 89 F.4th 686,
691 (8th Cir. 2023) (enforcing court-imposed exhaustion requirement when petitioner
was represented by counsel and argument was not presented to the BIA);
Chay-Velasquez v. Ashcroft, 367 F.3d 751, 756 (8th Cir. 2004) (claim not
meaningfully argued in an opening brief is waived); see also Padilla-Franco v.
Garland, 999 F.3d 604, 608 (8th Cir. 2021) (“An applicant for asylum cannot
establish a well-founded fear of future persecution if she can relocate within her
country of nationality and under all the circumstances it would be reasonable to
expect the applicant to do so.” (quotation omitted)).
Accordingly, the petition for review is denied. See 8th Cir. R. 47B.
______________________________
-2-

-- 2 of 2 --