                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                  April 26, 2010
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                  Clerk of Court
                           FOR THE TENTH CIRCUIT


 JESUS CONTRERAS-BOCANEGRA,

             Petitioner,

 v.                                                     No. 09-9521
                                                    (Petition for Review)
 ERIC H. HOLDER, JR.,
 United States Attorney General,

             Respondent.


                           ORDER AND JUDGMENT *


Before HARTZ, McKAY, and ANDERSON, Circuit Judges.



      Petitioner Jesus Contreras-Bocanegra seeks judicial review of the denial of

his application for cancellation of removal under 8 U.S.C. § 1229b. In the

alternative, he asks us to hold this appeal in abeyance pending a decision on his

motion to reopen, which is currently before the Board of Immigration Appeals




      *
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
(BIA). We see no reason to abate the appeal and deny that request. For the

reasons explained below, we also deny the petition for review.

I.    BACKGROUND

      Mr. Contreras 1 is a native and citizen of Mexico. Although he claims to

have lived in the United States since the early 1980s, he first gained formal status

in 1987 when he was admitted as a temporary resident. His status was adjusted to

that of a permanent resident alien in 1989. In 1991 Mr. Contreras pleaded guilty

in Utah state court to attempted possession of cocaine. He was fined and received

a 12-month suspended sentence.

      In 2004 federal agents stopped Mr. Contreras at a Los Angeles airport as he

was attempting to reenter the United States after a brief trip abroad. He was later

served with a Notice to Appear charging him with being removable because of the

1991 conviction. See 8 U.S.C. § 1182(a)(2)(A)(i)(II) (rendering inadmissible any

alien convicted of a controlled-substance violation). Mr. Contreras conceded

removability, but filed an application for cancellation of removal under

§ 1229b(a).

      [C]ancellation of removal is a discretionary form of relief that allows
      the Attorney General to cancel the removal order of a removable
      alien. To qualify for cancellation of removal, an alien must satisfy
      three elements: (1) the alien must have been lawfully admitted for
      permanent residence for not less than five years, 8 U.S.C.
      § 1229b(a)(1); (2) the alien must have resided in the United States

      1
      We follow the petitioner’s lead in referring to himself simply as
Mr. Contreras, rather than Mr. Contreras-Bocanegra.

                                         -2-
      continuously for 7 years after having been admitted in any status, id.
      § 1229b(a)(2); and (3) the alien may not have been convicted of any
      aggravated felony, id. § 1229b(a)(3).

Torres de la Cruz v. Maurer, 483 F.3d 1013, 1019–20 (10th Cir. 2007) (internal

quotation marks omitted). The immigration judge (IJ), however, ruled that

Mr. Contreras had failed to meet the residency requirement of § 1229b(a) and

ordered his removal.

      The IJ’s conclusion was based on § 1229b(d)(1), the so-called “stop-time

rule.” The stop-time rule was enacted as part of the Illegal Immigration Reform

and Immigrant Responsibility Act of 1996 (IIRIRA), and provides “a

methodology to calculate an alien’s continuous physical presence or residence in

the United States and thus determines whether an alien has been here long enough

to be eligible for cancellation of removal.” Torres de la Cruz, 483 F.3d at 1020.

The rule provides in relevant part that “any period of continuous residence or

continuous physical presence in the United States shall be deemed to end (A) . . .

when the alien is served a notice to appear . . . or (B) when the alien has

committed [a controlled substance] offense.” § 1229b(d)(1). Because Mr.

Contreras committed such an offense in 1991, only four years after his admission

into the United States, the IJ concluded that the stop-time rule precluded him

from accruing the seven years of continuous residence required by § 1229b(a)(2).

Although it appears from the transcript of the proceedings that the denial of

cancellation was based solely on Mr. Contreras’s failure to meet the seven-year

                                          -3-
requirement, see Admin. R. at 72–83, the IJ’s oral decision also said that

Mr. Contreras had failed to meet the five-year requirement set forth in

§ 1229b(a)(1). Id. at 26 (“[R]espondent has not been lawfully admitted to the

United States as a permanent resident for not less than five years. . . .”). The

government therefore contends that Mr. Contreras was denied relief on both

grounds.

      Mr. Contreras filed a timely notice of appeal with the BIA, challenging the

IJ’s retroactive application of the stop-time rule to his 1991 conviction. Although

he checked a box in the notice of appeal indicating that he would file a supporting

brief, he failed to do so. Consequently, his entire argument before the BIA was

contained in one short paragraph in the notice, which stated: “The immigration

judge did not apply the standard for cancellation of removal adequately. The

immigration judge applied laws of 1996 retroactively to a conviction of 1991

when it’s a violation of rights to apply them in such a manner.” Id. at 35. The

BIA rejected this argument and “agree[d] with the Immigration Judge’s finding

that the ‘stop-time’ rule preclude[d] [Mr. Contreras’s] eligibility for cancellation

of removal, notwithstanding the date of his criminal conviction.” Id. at 3. In so

ruling, the BIA noted that a decade earlier in In re Perez, 22 I. & N. Dec. 689

(BIA 1999), it had upheld application of the stop-time rule to a pre-IIRIRA

conviction and that it had recently reaffirmed that decision in In re Robles-Urrea,

24 I. & N. Dec. 22 (BIA 2006). It also cited cases from the Second, Fifth, and

                                          -4-
Ninth Circuits, along with our decision in Torres de la Cruz, as general support

for its decision to allow retroactive application of the stop-time rule.

      Mr. Contreras’s petition for review seeks an order overruling the BIA and

holding that the stop-time rule cannot be applied retroactively to convictions

obtained before IIRIRA’s enactment. 2 The government opposes relief on two

grounds. The first is procedural. It asserts that the IJ concluded that

Mr. Contreras had failed to meet two independent requirements for eligibility for

cancellation of removal: (1) the requirement of lawful admission as a permanent

resident for five years and (2) the requirement of continuous residence in this

country for seven years. On appeal to the BIA, however, Mr. Contreras

challenged only the IJ’s finding as to the seven-year requirement, thereby failing

to exhaust his administrative remedies with respect to the five-year requirement.

Therefore, argues the government, we cannot grant relief because Mr. Contreras is

barred from challenging the permanent-residence ground for the denial of his

application for cancellation of removal. Alternatively, the government argues that

the BIA correctly applied the stop-time rule to Mr. Contreras’s 1991 conviction.


      2
        Mr. Contreras has apparently filed with the BIA a motion to reopen based
on ineffective assistance of counsel, arguing that his prior counsel should have
insisted upon a hearing to determine whether he could establish an earlier date of
entry into the United States. See Aplt. Br. at 1, 5–7. But because that motion is
currently pending, he concedes that he has not exhausted his ineffective-
assistance claim. Id. at 6 (citing Galvez Pineda v. Gonzales, 427 F.3d 833,
837–38 (10th Cir. 2005)). Accordingly, we will not address it.


                                          -5-
II.   DISCUSSION

      A.     Five-Year-Permanent-Residence Requirement

      First we address the government’s argument that we must deny relief

because Mr. Contreras failed to appeal to the BIA the IJ’s ruling that he had not

satisfied the five-year-permanent-residence requirement of § 1229b(a). We reject

the argument, because the government cannot rely on the IJ’s permanent-

residence ruling. The BIA dismissed Mr. Contreras’s appeal in a substantive,

albeit short, opinion in accordance with the procedure set forth in 8 C.F.R.

§ 1003.1(e)(5). See generally Uanreroro v. Gonzales, 443 F.3d 1197, 1203–04

(10th Cir. 2006) (outlining the differences between methods of BIA decision-

making and the implications for appellate review). Under these circumstances, it

would be improper for us to “affirm on grounds raised in the IJ decision unless

they [were] relied upon by the BIA in its affirmance.” Id. at 1204. Uanreroro

held that “[a]s long as the BIA decision contains a discernible substantive

discussion, . . . [this court’s] review extends no further, unless [the BIA decision]

explicitly incorporates or references an expanded version of the same reasoning

below.” Id. Here, the BIA did not acknowledge, much less rely on, the IJ’s

finding that Mr. Contreras had failed to meet the permanent-residence

requirement of § 1229b(a)(1). The BIA’s affirmance was based exclusively on

application of the stop-time rule to the seven-year requirement of § 1229b(a)(2).

See Admin. R. at 2–3 (referring to Mr. Contreras’s period of “continuous”

                                         -6-
residence). Under these circumstances Uanreroro precludes us from denying

relief on the permanent-residence ground.

      B.     Seven-Year-Continuous-Residence Requirement

             1.    Jurisdiction

      Before addressing the merits of Mr. Contreras’s challenge to the IJ’s

decision regarding his seven-year continuous residence, we consider a potential

impediment to our jurisdiction, which we may raise sua sponte. See Conrad v.

Phone Directories Co., 585 F.3d 1376, 1380 (10th Cir. 2009). Our concern is

Mr. Contreras’s failure to file a brief in his appeal to the BIA. As a general

proposition, “neglecting to take an appeal to the BIA constitutes a failure to

exhaust administrative remedies as to any issue that could have been raised,

negating the jurisdiction necessary for subsequent judicial review.” Torres de la

Cruz, 483 F.3d at 1017 (internal quotation marks and alteration omitted).

Relevant here, we have held that “general statements in the notice of appeal to the

BIA are insufficient to constitute exhaustion of administrative remedies.” Id. at

1018. But fortunately for Mr. Contreras, although he failed to brief his argument

before the BIA, it nonetheless opted to resolve his appeal on the merits and

rendered a substantive discussion of the seven-year-continuous-residence issue.

We therefore conclude that he has exhausted his administrative remedies with

respect to that issue. See Sidabutar v. Gonzales, 503 F.3d 1116, 1120–1122




                                         -7-
(10th Cir. 2007) (exhaustion requirement is satisfied if the petitioner raised the

issue or if the BIA actually decided the issue).

      We also note that “[a]lthough we generally lack jurisdiction to review

denials of discretionary relief, see 8 U.S.C. § 1252(a)(2)(B), . . . this court always

retains jurisdiction to review constitutional claims and questions of law.” Garcia

v. Holder, 584 F.3d 1288, 1289 n.2 (10th Cir. 2009). The denial of relief in this

case turned on the BIA’s purely legal determination that the stop-time rule must

be applied retroactively to a conviction obtained before the rule’s enactment. We

have jurisdiction to review this legal determination.

             2.     Merits

      Mr. Contreras’s petition contends that applying the stop-time rule to bar

cancellation of removal is impermissibly retroactive in his case. This court has

previously rejected a constitutional attack when the stop-time rule was applied to

bar discretionary relief under § 1229b because of a prior conviction. See Torres

de la Cruz, 483 F.3d at 1021–22 (upholding the rule against equal-protection and

substantive-due-process challenges). The conviction in Torres de la Cruz did not

predate the enactment of IIRIRA, however, and therefore retroactive application

of the statute was not at issue. Nonetheless, Mr. Contreras apparently believes

that Torres de la Cruz mandates a denial of relief in his case. See Aplt. Br. at 5

(“This Court has supported the BIA in finding the stop-time rule was not

impermissibly retroactive.” (citing Torres de la Cruz)). But he urges us to

                                          -8-
“revisit” Torres de la Cruz, id. at 5, 7, and instead adopt the Ninth Circuit’s

reasoning in Sinotes-Cruz v. Gonzales, 468 F.3d 1190 (9th Cir. 2006), in which

the court held that it was impermissible to apply the stop-time rule retroactively

in the circumstances of that case.

      As a general matter, we do not consider arguments that are inadequately

briefed, see Bronson v. Swensen, 500 F.3d 1099, 1104–05 (10th Cir. 2007), as

when a proposition stated in the table of contents or in a section heading is not

followed by any supporting analysis. See id. at 1105 (“[C]ursory statements,

without supporting analysis and case law, fail to constitute the kind of briefing

that is necessary to avoid application of the forfeiture doctrine”). We could

dispose of the retroactivity issue on that ground because Mr. Contreras’s brief on

appeal contains almost no discussion of the issue. His argument of less than one

page does little more than baldly state that we should overrule the BIA and

categorically bar application of the stop-time rule to convictions obtained before

IIRIRA’s passage. There is no supporting analysis, and his brief does not even

attempt to explain why applying the stop-time rule is fundamentally unfair in this

case. Nevertheless, the brief does cite Sinotes-Cruz, which thoughtfully presents

arguments concerning retroactivity. We will exercise our discretion to consider

whether we should follow that decision and grant relief to Mr. Contreras.

      Before discussing Sinotes-Cruz, we note that at least one circuit has held

that § 1229b(d)(1)(B) unambiguously applies to convictions predating IIRIRA.

                                          -9-
See Heaven v. Gonzales, 473 F.3d 167 (5th Cir. 2006). Were we to follow that

circuit, we would reject the holding in Sinotes-Cruz. We need not go so far,

however, because, as we shall see, Sinotes-Cruz restricted its nonretroactivity

holding to a limited set of circumstances, and Mr. Contreras has made no effort to

show that his case comes within that set.

      Sinotes-Cruz pleaded guilty to two nondeportable offenses in 1993, only

five years after being admitted into the United States. Upon IIRIRA’s effective

date, the offenses became deportable, and in 2000 Sinotes-Cruz was placed in

removal proceedings. The IJ denied his request for cancellation of removal,

concluding that he was ineligible for relief because his 1993 convictions stopped

him from accruing seven years of continuous residence, a finding affirmed by the

BIA. The Ninth Circuit reversed, concluding that application of the stop-time

rule to Mr. Sinotes-Cruz’s pre-IIRIRA conviction obtained through a guilty plea

would produce an impermissible retroactive effect. See Sinotes-Cruz, 468 F.3d at

1197–1203. Because Sinotes-Cruz had pleaded guilty to an offense that did not

render him deportable at the time, the court reasoned that he had entered the plea

“in the justifiable expectation that [it] would have no effect on [his] immigration

status.” Id. at 1202. It also observed that before IIRIRA’s effective date,

Sinotes-Cruz had become eligible for discretionary relief. See id. at 1202. The

petitioner’s detrimental reliance on the state of the law at the time he pleaded

guilty, combined with IIRIRA’s elimination of any avenue for discretionary

                                         -10-
relief, led the court to hold that it would be fundamentally unfair to apply the

stop-time rule retroactively in his case. See id. at 1202-03.

      Even were we to agree with the reasoning of Sinotes-Cruz—a step we need

not take—we could not grant Mr. Contreras relief because he has not attempted to

show that he comes within its holding. Central to the Ninth Circuit’s decision

was that the petitioner had pleaded guilty to a nondeportable offense, and

therefore reasonably expected the conviction to have no effect on his immigration

status. Yet Mr. Contreras has not argued that his conviction was for a

nondeportable offense. Nor has he suggested that if it was a deportable offense,

he was nevertheless eligible for discretionary relief when he pleaded guilty.

Given Mr. Contreras’s failure to establish these critical facts, he has not shown

that he would be entitled to relief under the reasoning of Sinotes-Cruz. See

Martinez v. I.N.S., 523 F.3d 365, 373–74 (2d Cir. 2008) (applying the stop-time

rule to a conviction obtained before IIRIRA’s enactment “would not have an

impermissible retroactive effect” with respect to a petitioner who was not eligible

for discretionary relief when he committed the crime. (emphasis added)). As far

as we can tell, his right to stay in this country was no greater when he pleaded

guilty than it is now, so retroactive application of the stop-time rule is not unfair.




                                          -11-
III.   CONCLUSION

       We DENY Mr. Contreras’s petition for review. Mr. Contreras’s request to

abate the appeal is also DENIED.


                                     Entered for the Court


                                     Harris L Hartz
                                     Circuit Judge




                                      -12-
