Varghese v. Attorney General of the United States , 522 F. App'x 116 ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-4360
___________
EAPEN VARGHESE,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A041-999-587)
Immigration Judge: Honorable Walter A. Durling
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 10, 2013
Before: SLOVITER, CHAGARES and GREENBERG, Circuit Judges
(Opinion filed: April 15, 2013)
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OPINION
___________
PER CURIAM
Eapen Varghese petitions for review of a final order of removal of the Board of
Immigration Appeals (“BIA”). For the reasons set forth below, we will deny the petition
for review.
The facts being well-known to the parties, we highlight only those that are
pertinent to our decision. Varghese, a native and citizen of India, entered the United
States as a P-2 immigrant in 1990. He first appeared before an Immigration Judge (“IJ”)
in 2010, after violating a protective order. At that time, he was represented by an
attorney and was granted cancellation of removal. (A.R. 56-57.) After he was again
convicted of violating a protective order in 2012, the Department of Homeland Security
(“DHS”) initiated removal proceedings against him pursuant to 8 U.S.C. §
1227(a)(2)(E)(ii). (A.R. 89-90.) Varghese was personally served with a Notice to
Appear (“NTA”), advising him of his right to an attorney and containing a list of
attorneys that provided free legal services. (A.R. 93, 96.)
Varghese appeared before the same IJ on June 13, 2012, and was not represented
by an attorney. The IJ asked him if he understood his “right to be represented by an
attorney at no expense to the United States Government.” (A.R. 53.) After answering
affirmatively, Varghese confirmed that he wanted to talk to the IJ by himself. Varghese
admitted all of the factual allegations in the Notice to Appear (“NTA”), including his
conviction for violating the protective order, and conceded that he had already received
cancellation of removal. The IJ told him that he could not receive that relief again,
denied his request for voluntary departure, and ordered him removed to India. (A.R. 57-
58; 61.)
After retaining the same attorney who represented him in 2010, Varghese appealed
the IJ’s decision, arguing that the IJ improperly proceeded with the evidentiary hearing
2
because Varghese did not knowingly waive his right to an attorney. (A.R. 11-12.) The
BIA dismissed Varghese’s appeal. (A.R. 7.) The BIA found that the IJ did not violate
Varghese’s right to counsel, because the transcript revealed that he knowingly waived his
right to counsel and chose to proceed with the hearing. (A.R. 6-7.) Additionally, the
record contained a list of free legal services that was signed by Varghese. (A.R. 7.) The
BIA also affirmed the IJ’s finding that removability was established by clear and
convincing evidence because Varghese admitted his conviction for violating a protective
order. (A.R. 6.) Varghese’s petition for review followed.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). Varghese argues that the
IJ violated 8 C.F.R. § 1240.10, and therefore, the order of removal should be vacated and
a new hearing conducted. See Leslie v. Att’y Gen., 611 F.3d 171, 175 (3d Cir. 2010).
The Government responds that the IJ complied with the requirements set forth in 8 C.F.R.
§ 1240.10 and did not violate Varghese’s right to counsel. We agree.
The IJ specifically informed Varghese that he had a right to an attorney at no
expense to the Government. See 8 C.F.R. §§ 1240.10(a)(1)-(a)(2). Varghese twice told
the IJ that he wanted to talk to him without an attorney. (A.R. 53.) Further, the record
reflects that Varghese received a list of free legal services, see 8 C.F.R. § 1240.10(a)(3),
as that list was entered into evidence at the hearing and bore his signature (A.R. 93, 96).
Based on the record, we cannot say that the IJ failed to follow the regulation (as was the
case in Leslie, 611 F.3d at 175), such that Varghese was deprived of his constitutional
right to counsel.
3
Varghese also argues that the IJ failed to comply with 8 C.F.R. § 1240.10(a)(4)
because he was not advised of his right to examine and object to the evidence presented
against him.1 The Government argues that we lack jurisdiction to consider this claim
because it was not first presented to the BIA, see 8 U.S.C. § 1252(d), or in the alternative,
that the claim is meritless.
We agree that we lack jurisdiction to consider this argument. Varghese was
represented by counsel on appeal to the BIA, and the record reflects that he did not argue
that the IJ violated § 1240.10(a)(4) at his hearing. Because Varghese failed to “exhaust[]
all administrative remedies available” to him before the BIA, we cannot exercise
jurisdiction over that claim. 8 U.S.C. § 1252(d); see also Bonhometre v. Gonzales, 414
F.3d 442, 447-48 (3d Cir. 2005) (failure to argue procedural due process claims to BIA is
“fatal to our jurisdiction”). We will, therefore, deny the petition for review.
1
The IJ’s compliance with the remainder of the regulation, that is, §§ 1240.10(a)(5)-
(a)(7), is undisputed.
4