Gerson Antonio Flores v. U.S. Attorney General , 346 F. App'x 537 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 08-17079 U.S. COURT OF APPEALS
Non-Argument Calendar ELEVENTH CIRCUIT
SEPTEMBER 29, 2009
________________________
THOMAS K. KAHN
CLERK
Agency No. A028-874-181
GERSON ANTONIO FLORES,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision
of the Board of Immigration Appeals
________________________
(September 29, 2009)
Before TJOFLAT, EDMONDSON and COX, Circuit Judges.
PER CURIAM:
Gerson Antonio Flores, a native and citizen of El Salvador, seeks review of the
Board of Immigration Appeals’ (“BIA”) decision dismissing his appeal from the
immigration judge’s (“IJ”) denial of special rule cancellation of removal under § 203
of the Nicaraguan Adjustment and Central American Relief Act of 1997 (“Nicaraguan
Act”). Flores argues that the IJ erred in finding that he was ineligible for Nicaraguan
Act relief because he was inadmissible under the Immigration and Nationality Act
(“Immigration Act”) § 212(a)(2)(D), 8 U.S.C. § 1182(a)(2)(D). More specifically, he
argues that the IJ erroneously found that his conviction on a March 2000 state
solicitation of prostitution charge met the statutory definition of procuring
prostitution found in § 1182(a)(2)(D).
Flores also argues that the BIA erred in denying his motion to remand because
he submitted evidence showing that his solicitation of prostitution conviction was
vacated and therefore no longer constituted a conviction. And, he argues that the BIA
erred in denying his motion to remand because the IJ abused her discretion in denying
his motion for a continuance to respond to the Government’s motion to pretermit his
application for Nicaraguan Act relief.
In order to obtain judicial review of an order of removal, the petitioner must
have exhausted administrative remedies on his claim. Immigration Act § 242(d)(1),
8 U.S.C. § 1252(d)(1). The exhaustion requirement is jurisdictional and, accordingly,
we will not consider “a claim raised in a petition for review unless the petitioner has
exhausted his administrative remedies with respect thereto.” Amaya-Artunduaga v.
United States Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). An alien has failed
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to exhaust his administrative remedies if he fails to raise a claim in his notice of
appeal or brief before the BIA. Id.The only ground for appeal that Flores identified in his notice of appeal to the
BIA was that the IJ should not have denied him Nicaraguan Act relief because his
family would suffer hardship. He filed no brief with the BIA in support of his appeal.
Therefore, Flores did not exhaust his administrative remedies on the ground that he
now asserts in this court–that the IJ erroneously found that his solicitation of
prostitution conviction met the statutory definition of procuring prostitution found in
§ 1182(a)(2)(D)–and we lack jurisdiction to consider that argument.
A motion to remand is treated as a motion to reopen. Matter of Coelho, 20 I
& N. Dec. 464, 471 (BIA 1992). We review the BIA’s denial of a motion to reopen
for an abuse of discretion. Ali v. United States Att’y Gen., 443 F.3d 804, 808 (11th
Cir. 2006). A motion to reopen “shall state the new facts that will be proven at a
hearing to be held if the motion is granted and shall be supported by affidavits or
other evidentiary material. . . . A motion to reopen proceedings shall not be granted
unless it appears to the Board that evidence sought to be offered is material and was
not available and could not have been discovered or presented at the former hearing.”
8 C.F.R. § 1003.2(c)(1).
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Flores’s motion to remand argued that his conviction for solicitation of
prostitution was no longer material for immigration purposes because it was vacated.
A state conviction counts as a conviction for immigration purposes, “‘regardless of
whether it is later expunged under a state rehabilitative statute, so long as it satisfies
the requirements of § 1101(a)(48)(A).’” Ali, 443 F.3d at 810 (quoting Resendiz-
Alcaraz v. United States Att’y Gen., 383 F.3d 1262, 1271 (11th Cir. 2004)).1 And,
even if a state vacates a conviction, it still stands as a conviction for immigration
purposes unless it was vacated “based on a procedural or substantive defect in the
underlying proceedings.” Id. at 811.
The BIA did not abuse its discretion in denying Flores’s motion to remand
because the motion submitted no evidence material to the IJ’s order of removal.
Flores submitted no evidence demonstrating that his March 2000 solicitation of
prostitution conviction had been vacated based on an underlying procedural or
substantive error. To the contrary, the record demonstrates that the charged offense
was nolle prossed because Flores completed a court-ordered rehabilitation program
and paid the assessed fine.
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For the purposes of the Immigration Act, a conviction is relevant if a judge made an
adjudication of guilt or the adjudication of guilt was withheld, if: (1) the alien pled guilty, nolo
contendere, or admitted facts warranting a finding of guilt; and (2) the judge ordered some form of
punishment, penalty, or restraint on the alien’s liberty. Immigration Act § 101(a)(48)(A), 8 U.S.C.
§ 1101(a)(48)(A). Flores has not argued that his conviction does not satisfy these criteria.
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We will not review Flores’s argument that the IJ abused her discretion in
denying him a continuance. The claim is unexhausted. Flores did not object to the
denial of the continuance after the IJ granted him a recess. Nor did Flores argue in
his appeal to the BIA that the IJ had abused her discretion in denying his initial
request for a continuance. He raised this argument for the first time, over a year after
the IJ denied his request, in his reply to the Government’s opposition to his motion
to remand. That belated argument is insufficient to preserve the issue for our review
on appeal.
We dismiss Flores’s petition to the extent it raises unexhausted claims and deny
the rest of the petition.
DISMISSED IN PART; DENIED IN PART.
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