Juan Carlos Romero-Escobar v. Eric Holder, Jr. , 601 F. App'x 484 ( 2015 )


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  •                                                                             FILED
    NOT FOR PUBLICATION                              FEB 20 2015
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    JUAN CARLOS ROMERO-ESCOBAR,                      Nos. 13-71801, 13-73289
    Agency No. A043-735-880
    Petitioner,
    v.
    ERIC H. HOLDER, JR., Attorney General,           MEMORANDUM*
    Respondent.
    On Petition for Review of Orders of the
    Board of Immigration Appeals
    Submitted February 6, 2015**
    San Francisco, California
    Before: TALLMAN and RAWLINSON, Circuit Judges, and DEARIE, Senior
    District Judge.***
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    ***
    The Honorable Raymond J. Dearie, Senior District Judge for the U.S.
    District Court for the Eastern District of New York, sitting by designation.
    Juan Carlos Romero-Escobar (“Romero”), a native and citizen of El
    Salvador, petitions for review of two orders by the Board of Immigration Appeals
    (“BIA”). First, the BIA dismissed his appeal from an Immigration Judge’s removal
    order for lack of jurisdiction, finding that Romero had waived his right to appeal
    and determining that Romero had not contested the validity of that waiver. Romero
    appeals in No. 13-71801. Second, the BIA denied Romero’s motion to reopen and
    reconsider, finding that Romero’s waiver of his right to appeal had been
    “considered and intelligent,” and therefore declining to reach Romero’s remaining
    contentions. Romero appeals in No. 13-73289.
    We have jurisdiction under 
    8 U.S.C. § 1252
    . We review de novo questions
    of law; we review for abuse of discretion the denial of a motion to reopen.
    Mohammed v. Gonzales, 
    400 F.3d 785
    , 791–92 (9th Cir. 2005). We dismiss in part
    and deny in part the petition for review.
    First, this Court lacks jurisdiction over the petition for review of the BIA’s
    dismissal of Romero’s appeal. Romero’s waiver of his right to appeal constitutes a
    failure to exhaust his administrative remedies. See 
    8 U.S.C. § 1252
    (d)(1); Barron
    v. Ashcroft, 
    358 F.3d 674
    , 678 (9th Cir. 2004). Furthermore, Romero made no
    argument in his appeal that the waiver was not “considered and intelligent.” See
    Brown v. Holder, 
    763 F.3d 1141
    , 1146 (9th Cir. 2014) (“[Petitioner] argues to us
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    that his waiver of appeal before the [immigration judge] was not knowing and
    intelligent. . . . On appeal to the BIA, however, [petitioner] did not claim that the
    waiver was not knowing and voluntary, and therefore we may not review this
    claim.”).
    Romero’s argument that the BIA erroneously construed certain key
    regulations as jurisdictional is unavailing.
    Second, the BIA acted within its discretion when it denied Romero’s motion
    to reopen and reconsider. Romero failed to establish that his waiver of the right to
    appeal the Immigration Judge’s decision was not “considered and intelligent.” See
    
    8 C.F.R. § 1003.2
    ; Bhasin v. Gonzales, 
    423 F.3d 977
    , 984 (9th Cir. 2005); see also
    Biwot v. Gonzales, 
    403 F.3d 1094
    , 1098 (9th Cir. 2005) (waiver of right to appeal
    must be “considered and intelligent”). Also, the Board properly observed that
    Romero’s motion relied on legal arguments that he could have raised in his direct
    appeal. See 
    8 C.F.R. § 1003.2
    (c)(1) (explaining that “[a] motion to reopen
    proceedings shall not be granted unless it appears to the [BIA] that evidence sought
    to be offered is material and was not available and could not have been discovered
    or presented at the former hearing.”).
    Nor are we persuaded by Romero’s argument that his appeal waiver is
    invalid because he was unaware of certain alternative avenues for relief. To the
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    contrary, the record shows that the Immigration Judge fully explained to Romero
    that he could apply for discretionary cancellation of removal under 8 U.S.C.
    § 1229b, making this case distinguishable from United States v. Pallares–Galan,
    
    359 F.3d 1088
    , 1096 (9th Cir. 2004) (“Because the [immigration judge] erred when
    she told Pallares that no relief was available, Pallares’ failure to exhaust his
    administrative remedies cannot bar collateral review of his deportation
    proceeding.”). The Immigration Judge ultimately acted within his discretion to
    deny Romero relief, 8 U.S.C. § 1229b, a decision this Court lacks jurisdiction to
    review, see 
    8 U.S.C. § 1252
    (a)(2)(B)(i).
    In light of our disposition, we do not consider Romero-Escobar’s remaining
    contentions.
    PETITION FOR REVIEW DISMISSED in part; DENIED in part.
    4