Cardenas-Tafoya v. Holder, Jr. , 424 F. App'x 721 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
May 24, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
EFRAIN CARDENAS-TAFOYA,
Petitioner,
v. No. 10-9568
(Petition for Review)
ERIC H. HOLDER, JR., Attorney
General of the United States,
Respondent.
ORDER AND JUDGMENT *
Before TYMKOVICH and BALDOCK, Circuit Judges, and BRORBY,
Senior Circuit Judge.
Petitioner Efrain Cardenas-Tafoya, born in Mexico, was admitted to the
United States as a lawful permanent resident in 1988. In 2005, he was convicted
in Colorado state court of conspiracy to distribute or manufacture a controlled
substance and sentenced to seven years in prison. Upon his release from custody
in 2010, the Department of Homeland Security commenced removal proceedings,
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
charging him with removability as an alien convicted of an aggravated felony,
namely, trafficking in a controlled substance. An immigration judge (IJ) ordered
Mr. Cardenas-Tafoya removed to Mexico on that basis. 1
Mr. Cardenas-Tafoya was represented by counsel during the removal
proceedings but thereafter retained new counsel. The new attorney filed a motion
to reopen with the IJ, asserting that the prior attorney provided ineffective
assistance of counsel in failing to investigate and present any defense, that
Mr. Cardenas-Tafoya was entitled to derivative U.S. citizenship because his father
was a U.S. citizen, and that Mr. Cardenas-Tafoya’s conviction was not an
aggravated felony. The IJ issued a ruling on July 9, 2010, denying the motion.
The IJ concluded that “the record shows conclusively that [Mr. Cardenas-Tafoya]
is deportable for the drug trafficking offense.” Admin. R. at 25. The IJ also
concluded that Mr. Cardenas-Tafoya’s evidence of his claim to derivative
citizenship was insufficient to overcome the government’s evidence that his father
was not a U.S. citizen. The government’s evidence included a contemporaneous
birth certificate showing that Mr. Cardenas-Tafoya’s father was born in Mexico,
and evidence that the State Department, after an extensive fraud investigation,
had posthumously revoked a 1984 passport his father had obtained based on
1
Although Mr. Cardenas-Tafoya reserved appeal of the IJ’s removal order,
he never filed one.
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misrepresenting himself as a U.S. citizen. The IJ did not separately address the
ineffective assistance claim.
On July 14, 2010, five days after the IJ’s decision, Mr. Cardenas-Tafoya
was removed to Mexico. He filed an appeal of the IJ’s decision with the Board of
Immigration Appeals (BIA). The BIA received the appeal on August 11, 2010.
The BIA dismissed the appeal for lack of jurisdiction on the ground that it was
received two days beyond the 30-day limit set out in 8 C.F.R. § 1003.38(b). The
BIA also determined that because Mr. Cardenas-Tafoya had been removed prior
to filing the appeal, it lacked jurisdiction under 8 C.F.R. § 1003.3(e), which
provides that “[d]eparture from the United States of a person who is the subject of
deportation proceedings, prior to the taking of an appeal from a decision in his or
her case, shall constitute a waiver of his or her right to appeal.” In addition, the
BIA “separately note[d]” that the evidence Mr. Cardenas-Tafoya submitted with
his motion to reopen “in support of [his] derivative citizenship claim was
insufficient to warrant reopening for the reasons set forth by the [IJ].” Admin. R.
at 6.
Mr. Cardenas-Tafoya next filed this timely petition for review. In his
briefs, however, he has not contested either of the jurisdictional bases for the
BIA’s dismissal of his appeal. Instead, he argues the merits of the three claims he
presented to the IJ. But to the extent the BIA addressed the merits of appeal, it
did so in the alternative; the BIA’s jurisdictional rulings were independent
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grounds for dismissing the appeal. By not contesting those dispositive rulings,
Mr. Cardenas-Tafoya has forfeited his right to appellate review of them. See
Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (explaining that “the
omission of an issue in an opening brief generally forfeits appellate consideration
of that issue”). Accordingly, without expressing any opinion on the propriety of
the BIA’s rulings, we DENY the petition for review.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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