         09-3020-ag
         Benitez v. Holder



1                                  UNITED STATES COURT OF APPEALS
2                                      FOR THE SECOND CIRCUIT
3
 4                                          SUMMARY ORDER
 5
 6   RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY ORDER
 7   FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
 8   PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMM ARY ORDER IN A DOCUM ENT
 9   FILED W ITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
10   DATABASE (W ITH THE NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE
11   A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
12
13              At a stated term of the United States Court of Appeals for the Second Circuit, held at
14       the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
15       York, on the 22nd day of June, two thousand ten.
16
17       PRESENT:
18                   AMALYA L. KEARSE,
19                   PIERRE N. LEVAL,
20                   DEBRA ANN LIVINGSTON,
21                               Circuit Judges.
22       __________________________________________
23
24       Juan Ramon Benitez,
25
26                           Petitioner,
27
28                           v.                                                 09-3020-ag
29
30       Eric H. Holder Jr., U.S. Attorney General,
31
32                   Respondent.
33       __________________________________________
34
35       FOR PETITIONER:                   BRUNO JOSEPH BEMBI, Hempstead, N.Y.
36
37       FOR RESPONDENT:                   ZOE HELLER (TONY WEST, Assistant Attorney General,
38                                         MICHAEL P. LINDEMANN, Assistant Director, CHRISTOPHER
39                                         C. FULLER, Senior Litigation Counsel, on the brief), Office of
40                                         Immigration Litigation, Civil Division, U.S. Department of Justice,
41                                         Washington, D.C.
42
 1           UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND

 2   DECREED that the petition for review of a Board of Immigration Appeals decision is

 3   DISMISSED.

 4           Petitioner Juan Ramon Benitez, a native and citizen of El Salvador, seeks review of a final

 5   order of removal entered by the BIA on June 16, 2009 denying his application for special rule

 6   cancellation of removal pursuant to the Nicaraguan Adjustment and Central American Relief Act

 7   (“NACARA”), Pub. L. No. 105-100 Title II, 111 Stat. 2193 (1997), as amended by Pub L. No.

 8   105-139, 111 Stat. 2644 (1997) (codified in scattered sections of 8 U.S.C.), and affirming a

 9   November 30, 2007 decision of Immigration Judge (“IJ”) Barbara A. Nelson. In re Juan Ramon

10   Benitez, No. A094 090 943 (B.I.A. June 16, 2009), aff’g No. A 94 090 943 (Immig. Ct. N.Y. City

11   Nov. 30, 2007). We assume the parties’ familiarity with the underlying facts and procedural history

12   in this case.

13           Benitez arrived in the United States from El Salvador in 1990 when he was about 20 years

14   old without inspection or admission. While in the United States, between 1997 and 2004, Benitez

15   was arrested six times for unlicensed operation of a motor vehicle or operating a vehicle while

16   impaired or intoxicated. Each time, he pled guilty and was either ordered to pay a fine, serve a short

17   jail sentence, or both. On April 24, 2006, the Department of Homeland Security served Benitez with

18   a Notice to Appear (“NTA”) alleging that he entered the United States without inspection. He

19   admitted the charges in the NTA to the IJ, conceded his removability, but sought relief in the form

20   of asylum, withholding of removal, and special rule cancellation of removal under NACARA. On

21   November 30, 2007, the IJ denied his asylum and withholding of removal claims and also

22   determined that while Benitez met the statutory requirements for eligibility for special rule


                                                       2
 1   cancellation of removal, that form of discretionary relief should be denied based on a balancing of

 2   the seriousness of his arrests and convictions and the fact that he has no family in the United States

 3   against the hardships he will face if removed to El Salvador. The IJ granted Benitez’s request for

 4   voluntary departure. Benitez appealed to the BIA, challenging only the IJ’s denial of special rule

 5   cancellation of removal. The BIA dismissed Benitez’s appeal and Benitez timely appealed to this

 6   Court. For the reasons that follow, we determine that we do not have jurisdiction to entertain this

 7   appeal and, accordingly, dismiss his petition for review.

 8           The NACARA, enacted in 1997, amended certain provisions of the Illegal Immigration

 9   Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) to, among other things, allow

10   “qualified aliens from certain countries placed in [deportation] proceedings before, on, or after April

11   1, 1997, to apply for ‘special rule’ protection from deportation.” Tanov v. I.N.S., U.S. Dep’t of

12   Justice, 443 F.3d 195, 199 (2d Cir. 2006) (alteration in original). Specifically, the NACARA

13   amended IIRIRA § 309 by adding a subsection (f) entitled “Special Rule for Cancellation of

14   Removal.” NACARA § 203(b), 111 Stat. at 2198, codified at 8 U.S.C. § 1101 note. It provides that

15   the “Attorney General may, under section 240A[, 8 U.S.C. § 1229b,] of [the Immigration and

16   Nationality Act], cancel removal of . . . an alien who is inadmissible or deportable from the United

17   States” if the alien meets certain statutory requirements. Id. The same section of NACARA

18   specifies that this special rule cancellation of removal is “[s]ubject to the provisions of the

19   Immigration and Nationality Act . . . including section 242(a)(2)(B)[, 8 U.S.C. § 1252(a)(2)(B)].”

20   Id. INA § 242(a)(2)(B) in turn provides that “no court shall have jurisdiction to review . . . any

21   judgment regarding the granting of relief under . . . section . . . 1229b.” 8 U.S.C. § 1252(a)(2)(B)(i).

22           Notwithstanding this provision, we are not precluded from reviewing constitutional claims


                                                        3
 1   or questions of law raised in a petition for review. 8 U.S.C. § 1252(a)(2)(D); Sumbundu v. Holder,

 2   602 F.3d 47, 53 (2d Cir. 2010). Benitez, however, has failed to articulate such a claim. Benitez did

 3   not raise before the BIA the contentions regarding the IJ’s erroneous findings of fact or

 4   misinterpretation of the record that appear in his brief before this Court, choosing instead to present

 5   to the BIA an argument that the IJ failed adequately to consider evidence of his alcohol

 6   rehabilitation and did not properly balance the seriousness of his violations against the hardship he

 7   will face upon removal. Since this Court generally will not consider an argument a petitioner failed

 8   to exhaust before the BIA, Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 120-23 (2d Cir. 2007)

 9   (noting that while administrative issue exhaustion is not jurisdictional, it is in the Court’s discretion

10   whether to review an issue not presented to the BIA), we need not address Benitez’s argument on

11   appeal that the IJ misstated or misinterpreted parts of the record. Because, in asking the BIA to

12   exercise its discretion to grant him special rule relief, Benitez did not challenge any findings of the

13   IJ, we decline to entertain such challenges—even if they could be deemed to rise to the level of

14   issues of law—now that the BIA has made its discretionary decision.

15           Thus, since NACARA special rule cancellation of removal is granted in the Attorney

16   General’s discretion pursuant to section 1229b and there is no issue of an error as to a constitutional

17   claim or question of law, this Court does not have jurisdiction to review the Attorney General’s

18   decision regarding that relief. See De La Vega v. Gonzales, 436 F.3d 141, 144 (2d Cir. 2006)

19   (holding that “8 U.S.C. § 1252(a)(2)(B)(i) deprives courts of the power to review discretionary

20   determinations concerning cancellation of removal” and dismissing petition for review).1


             1
              Benitez contends that the jurisdiction-stripping provisions of NACARA do not apply to
     the circumstances of his case, pointing to NACARA § 203(a)(1), 111 Stat. at 2197-98, which
     makes unreviewable by any court a determination by the Attorney General whether an alien has

                                                        4
1          We have considered the rest of Benitez’s arguments that are properly before us and find them

2   to be without merit.

3          For the foregoing reasons, the petition for review is DISMISSED. As we have completed

4   our review, the pending motion for a stay of the voluntary departure order is DENIED as moot.

5
6                                                FOR THE COURT:
7                                                Catherine O’Hagan Wolfe, Clerk
8

9




    satisfied the statutory requirements for special rule cancellation of removal eligibility. He is
    correct that this jurisdiction-stripping provision does not apply to his case since, here, the IJ
    determined—and the government does not challenge—that he met the statutory prerequisites for
    special rule cancellation of removal. Benitez’s contention, however, overlooks the jurisdiction-
    stripping provision of 8 U.S.C. § 1252(a)(2)(B) which, by explicit command of NACARA,
    applies to the exercise of the Attorney General’s discretion to deny relief in this case.

                                                    5
