                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                      November 5, 2013

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
JAIME MORALES, a/k/a Angel
Hernandez, a/k/a Jaime Morales-Campos,

             Petitioner,

v.                                                    Nos. 12-9583 & 13-9533
                                                       (Petition for Review)
ERIC H. HOLDER, JR., United States
Attorney General,

             Respondent.


                            ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, ANDERSON, Circuit Judge, and BRORBY, Senior
Circuit Judge.


      Jaime Morales has filed two petitions for review of orders of the Board of

Immigration Appeals (BIA). In the first petition, No. 12-9583, he seeks review of a

BIA order affirming a decision by an Immigration Judge (IJ) that he is ineligible for

adjustment of status because he made a false claim to United States citizenship that


*
      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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
renders him inadmissible. In the second petition, No. 13-9533, he seeks review of a

BIA order denying his motion to reopen. We have consolidated the appeals under

8 U.S.C. § 1252(b)(6).1 In No. 12-9583, we dismiss the petition for lack of

jurisdiction. In No. 13-9533, we dismiss the petition in part and deny it in part.

I.    BACKGROUND

      Mr. Morales is a native and citizen of Mexico. He was born in 1981 and

entered the United States with his parents in 1988. He lived in California until his

family moved to Utah in 1999. He married a United States citizen in 2002 and has

four children who are United States citizens.

      In 2011, he was charged with inadmissibility under § 1182(a)(6)(A)(i) as an

alien present in the United States without being admitted or paroled. At a hearing

before the IJ, he conceded removability and requested to adjust his status to legal

permanent resident under § 1255(i). Because of a controlled-substance offense that

rendered him inadmissible under § 1182(a)(2)(A)(i)(II), he also sought a § 1182(h)

waiver, which gives the Attorney General discretionary authority to waive that basis

of inadmissibility when the offense involves simple possession of 30 grams or less of

marijuana. The relevant provision of § 1182(h) required him to show that “denial of

admission would result in extreme hardship to” his U.S.-citizen wife and children.

§ 1182(h)(1)(B).


1
       Unless otherwise noted, all further statutory references (which are denoted by
a “§” symbol or the word “section”) are to Title 8 of the United States Code.


                                          -2-
       During the hearing, Mr. Morales testified that, before moving to Utah, his

ex-brother-in-law gave him a copy of a birth certificate bearing the name “Angel

Hernandez” and a social security number belonging to an “Angel Hernandez.” He

stated that he used that alias at times when he was arrested. In response to

questioning by the IJ, Mr. Morales admitted that he used the birth certificate to obtain

work in Utah, apparently in 1999, because it was “the only status [he had] to work.”

R. at 423.2 That caused the IJ to consider whether Mr. Morales was inadmissible

under § 1182(a)(6)(C)(ii)(I) for having made a false claim to United States

citizenship in order to obtain a benefit under the law.3 To that end, the IJ granted

Mr. Morales’s attorney, Laura Lui, two continuances so that she could gather any

evidence that might assist Mr. Morales in meeting his burden to show that he was

eligible for the relief he had applied for.

       Although Ms. Lui searched various sources of employment information, she

was unable to produce any further dispositive evidence. Accordingly, the IJ found

that Mr. Morales had clearly testified that he used a birth certificate to make a false

claim to United States citizenship. Based on that testimony, the IJ concluded that

Mr. Morales failed to meet his burden to show he was not inadmissible under

2
      For convenience, all record cites are to the record filed in No. 13-9533, which
contains the complete administrative record.
3
       Section 1182(a)(6)(C)(ii)(I) provides: “Any alien who falsely represents, or
has falsely represented, himself or herself to be a citizen of the United States for any
purpose or benefit under this chapter (including section 1324a of this title) or any
other Federal or State law is inadmissible.”


                                              -3-
§ 1182(a)(6)(C)(ii)(I). Because there is no waiver of this ground of inadmissibility,

the IJ determined that Mr. Morales was ineligible for adjustment of status, and the IJ

therefore did not make any findings regarding the hardship waiver or whether

Mr. Morales merited that relief as a matter of discretion.

      Mr. Morales appealed to the BIA. As relevant to his petitions for review, he

argued that any claim of citizenship occurred when he was a juvenile and living in an

“alcohol daze” and unable to recall the actual details of that claim to citizenship. R.

at 253. He therefore contended that the IJ should have given him more of a chance to

explain “what really happened” and that the alleged false claim “could have been

something much more innocent,” although he did not say what. Id. at 254. He also

argued that his qualifying relatives would suffer extreme hardship if he were

removed.

      The BIA upheld the IJ’s decision and dismissed the appeal. The BIA

concluded that there was no clear error in the IJ’s factual findings and no legal error

in the conclusion that Mr. Morales failed to meet his burden of proof to establish that

he is not inadmissible under § 1182(a)(6)(C)(ii)(I). The BIA also noted that

Mr. Morales summarily stated in his notice of appeal that the proceedings deprived

him of due process and violated his rights under the immigration laws, but the only

related assertion in his brief was that the IJ should have given him a greater

opportunity to explain the circumstances surrounding the birth-certificate incident.

The BIA determined that the IJ gave Mr. Morales a sufficient opportunity to offer an


                                          -4-
explanation and otherwise did not exhibit any bias. The BIA concluded that the

due-process allegation was unsubstantiated and failed to explain how Mr. Morales

was prejudiced. Therefore, the BIA determined, the claimed due process violation

did not warrant a remand for a new hearing.

      After obtaining new counsel, Mr. Morales filed a timely motion to reopen with

the BIA. He asserted that his prior attorney, Ms. Lui, rendered ineffective assistance

of counsel before the IJ by not exploring (1) whether he in fact used a fake green card

and social security number instead of a birth certificate in order to obtain

employment and (2) his minority status when made the false claim to citizenship. He

supported these claims with a sworn declaration stating that he was confused at the

hearing when he said he used a birth certificate to obtain employment and that, if

Ms. Lui had asked follow-up questions when given the opportunity, he would have

clarified that he in fact used a fake green card bearing the name “Angel Hernandez”

to obtain employment. He further stated that after the hearing where he testified, he

told Ms. Lui he had made a mistake—that he had in fact used a fake green card, not a

birth certificate. He also argued that Ms. Lui was ineffective by leading him into

questions about his employment history, neglecting to request post-conclusion

voluntary departure, failing to marshal evidence, failing to present a claim of

ineffective assistance with regard to voluntary departure on appeal to the BIA, and

not fleshing out the due process allegation that the BIA had considered unsupported.




                                          -5-
Finally, Mr. Morales claimed that the IJ did not fulfill his obligation to inform him of

his apparent eligibility for voluntary departure.

      The BIA denied the motion to reopen. It first concluded that Mr. Morales did

not submit new or material evidence that Ms. Lui’s representation was ineffective

with regard to whether he had falsely presented a U.S. birth certificate or was a minor

at the time he did so. The BIA stated that Mr. Morales had “unambiguously

testified” before the IJ that he used the birth certificate to obtain employment in

Utah. R. at 4. The BIA refused to give material weight to the conflicting claim in

Mr. Morales’s declaration that he had in fact used a false green card, not a birth

certificate, because of his testimony before the IJ, the lack of any corroborating

evidence, and the IJ’s factual determination that he had presented a false birth

certificate. The BIA further determined that Mr. Morales had presented no new

evidence regarding his age when he first used the birth certificate and concluded that,

in any event, he continued to be employed by the same employer until he was

twenty-two or twenty-three years old, so “he continued to accept the benefit of his

false and unretracted claim of United States citizenship into adulthood.” Id.

      Next, the BIA stated that the motion to reopen failed to identify or present any

evidence Ms. Lui allegedly failed to marshal. The BIA also rejected Mr. Morales’s

claim that Ms. Lui was ineffective by failing to present a claim for post-conclusion

voluntary departure. The BIA relied on statements in Ms. Lui’s affidavit, submitted

in support of the government’s response to the motion to reopen, that she discussed


                                          -6-
the possibility of voluntary departure with Mr. Morales but he refused to accept it, so

she did not raise it with the IJ. Finally, the BIA concluded that even if Ms. Lui had

been ineffective, Mr. Morales had failed to “show through new evidence or evidence

already of record that [his] case would satisfy the hardship or discretionary factors

(particularly in light of his criminal history) that are essential to his claim for relief.”

Id. at 5.

II.    DISCUSSION

       A.     No. 12-9583

       In No. 12-9583, the petition for review of the BIA’s merits decision,

Mr. Morales primarily argues that his due process rights were violated by Ms. Lui’s

allegedly ineffective assistance. The problem for Mr. Morales is that, prior to

judicial review, an alien must “exhaust[] all administrative remedies available to the

alien as of right,” § 1252(d)(1), and exhaustion is jurisdictional, Sidabutar v.

Gonzales, 503 F.3d 1116, 1118 (10th Cir. 2007). He did not expressly present any

ineffective-assistance claims to the BIA in his appeal from the IJ’s decision, and his

allegation of a due process violation, which the BIA deemed insufficiently developed

to merit remand, did not even imply an ineffective-assistance claim. Accordingly,

the ineffective-assistance issue in No. 12-9583 is unexhausted, and we lack

jurisdiction over it. See Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237 (10th Cir.

2010) (“To satisfy § 1252(d)(1), an alien must present the same specific legal theory

to the BIA before he or she may advance it in court.”). There is a narrow exception


                                            -7-
to the exhaustion requirement where the BIA independently takes up an issue not

appealed to it. Id. at 1238. But in order for that exception to apply, “the BIA’s

ruling must (1) clearly identify a claim, issue, or argument not presented by the

petitioner; (2) demonstrate that the agency chose to exercise its discretion to entertain

that matter; and (3) explicitly decide that matter in a full explanatory opinion or

substantive discussion.” Id. at 1238-39. The BIA’s treatment of the due process

argument does not satisfy any of these requirements.

      Mr. Morales also claims the IJ erred because “there are factual discrepancies

on whether [he] falsely and knowingly made a false claim to citizenship, what

document he used to make the false claim and his age at the time of the false claim.”

Pet’r’s Br. at 21. This argument was not presented to the BIA, nor did the BIA

actually consider and rule on it, so we lack jurisdiction to consider it. See

Garcia-Carbajal, 625 F.3d at 1238-39. Furthermore, he bases this argument on the

declaration he submitted in support of his motion to reopen, which was not part of the

record before the BIA when it decided the merits appeal. Hence, we may not

consider it. See § 1252(b)(4)(A) (limiting judicial review to “the administrative

record on which the order of removal is based”).4


4
       Mr. Morales also argues that he made the requisite showing of extreme
hardship necessary to the § 1182(h) waiver. That issue is not properly before us in
this petition because neither the IJ nor the BIA, in its merits decision, ruled on
hardship. See Sarr v. Gonzales, 474 F.3d 783, 791 (10th Cir. 2007) (stating that we
do not “decid[e] immigration appeals on the basis of grounds not expressly or
impliedly adopted by the BIA”).


                                          -8-
      B. No. 13-9533

      In No. 13-9533, the petition for review of the BIA’s denial of the motion to

reopen, Mr. Morales argues that Ms. Lui provided ineffective assistance of counsel in

connection with the birth-certificate incident. However, this overlooks the BIA’s

alternate resolution—that even if Ms. Lui was ineffective, Mr. Morales still failed to

show that he would satisfy the hardship or discretionary factors essential to his claim

for relief, which required him to obtain the § 1182(h)(1)(B) waiver in order to adjust

his status under § 1255(i). We lack jurisdiction to review the BIA’s alternate

determination because, in relevant part, § 1252(a)(2)(B)(i) bars judicial review of

“any judgment regarding the granting of relief under section 1182(h).” See also

Munis v. Holder, 720 F.3d 1293, 1295 (10th Cir. 2013) (holding “that the hardship

determination required for a waiver of inadmissibility under § 1182(h)(1)(B) is an

unreviewable discretionary decision”). Although § 1252(a)(2)(D) permits judicial

review of constitutional claims or questions of law, it does not apply here because

Mr. Morales has not raised any such claims or questions with regard to the BIA’s

alternate disposition.

      Because we lack jurisdiction to review the BIA’s alternate determination, we

need not decide whether the BIA erred with respect to Ms. Lui’s effectiveness, at

least with regard to the birth-certificate incident and the due process claim the BIA

considered undeveloped in the merits appeal. But Mr. Morales also argues that

Ms. Lui was ineffective before the IJ by failing to request post-conclusion voluntary


                                         -9-
departure and before the BIA by not raising that failure.5 The BIA’s alternate

resolution does not obviate consideration of these arguments because the BIA based

that resolution on Mr. Morales’s failure to show he “satisf[ied] the hardship or

discretionary factors . . . that are essential to his claim for relief,” R. at 5, and the

“claim for relief” the BIA was referring to was the hardship waiver, not

post-conclusion voluntary departure. Hence, we see no jurisdictional impediment to

our review of the BIA’s disposition of these post-conclusion voluntary-departure

arguments.
5
       In addition, Mr. Morales argues that Ms. Lui was ineffective by not advising
him of the two types of voluntary departure (pre- and post-conclusion voluntary
departure) and in not pursuing pre-conclusion voluntary departure. However, in the
memorandum supporting his motion to reopen, he acknowledged that pre-conclusion
voluntary departure is a type of relief, see R. at 69-70, but he did not raise either of
the pre-conclusion issues he advances here. Instead, his motion specifically asked for
reopening to consider adjustment of status and post-conclusion voluntary departure.
See id. at 36. In his supporting memorandum, he titled his argument “[Mr. Morales]
did not knowingly waive his right to pursue post-conclusion [voluntary departure]
and counsel was ineffective for not seeking the relief.” Id. at 69 (capitalization,
boldfacing, and underlining omitted). Further, he focused on Ms. Lui’s failure to
pursue post-conclusion voluntary departure. See, e.g., id. at 61 (“[I]t appears that
[Ms. Lui] completely neglected to request voluntary departure as an alternative relief
to adjustment and in lieu of removal”); id. at 70 (“[Mr. Morales] does not recall that
[Ms. Lui] explained the possibility of post-conclusion voluntary departure in the
event that his application for adjustment of status was denied by the [IJ] . . . .”); id.
at 71-72 (stating that he “desired to seek voluntary departure as an alternative relief
to the IJ finding him removable”); id. at 72 (claiming that Ms. Lui “failed to properly
advise [him] of all of the possible options for relief, including the ability to pursue
[the] adjustment application and still receive voluntary departure”). Moreover, the
BIA did not expressly take up or decide the pre-conclusion issues he now raises in
his petition for review. We therefore lack jurisdiction to consider them. See
Garcia-Carbajal, 625 F.3d at 1238-39; Sidabutar, 503 F.3d at 1118-22 (extending
issue-exhaustion requirement to issues that could have been raised in a motion to
reopen or reconsider).


                                            - 10 -
      We review the denial of a motion to reopen for an abuse of discretion.

Infanzon v. Ashcroft, 386 F.3d 1359, 1362 (10th Cir. 2004). “The BIA abuses its

discretion when its decision provides no rational explanation, inexplicably departs

from established policies, is devoid of any reasoning, or contains only summary or

conclusory statements.” Id. (quotation omitted).

      In addressing Mr. Morales’s claim that Ms. Lui was ineffective with regard to

post-conclusion voluntary departure, the BIA relied on a statement in her affidavit

that she had discussed voluntary departure with Mr. Morales but he refused to accept

it. Ms. Lui further stated in her affidavit that Mr. Morales’s refusal to accept

voluntary departure was the reason she did not present it to the IJ. The BIA

apparently did not credit Mr. Morales’s declaration, where he stated that Ms. Lui

failed to discuss voluntary departure with him prior to the hearing where he testified

and did not tell him he could obtain voluntary departure even if the IJ denied his

adjustment application.

      Mr. Morales argues that by accepting Ms. Lui’s affidavit over his declaration,

the BIA engaged in factfinding prohibited by regulation. But the relevant regulation

states that the BIA “will not engage in factfinding in the course of deciding appeals.”

8 C.F.R. § 1003.1(d)(3)(iv) (emphasis added). It is inapplicable here because the

BIA evaluated factual evidence in connection with a motion to reopen, not “in the

course of deciding [an] appeal[].” Id. Mr. Morales’s reliance on a number of cases

in support of this argument is similarly misplaced because they all concerned


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limitations on the BIA’s factfinding capability during appeals. Moreover, the BIA

also determined that the motion failed to establish Mr. Morales’s eligibility for any

relief, and nowhere in the record or in his petition for review has Mr. Morales made a

showing that he is eligible for post-conclusion voluntary departure. Therefore, he

failed to show the prejudice necessary for a successful claim of ineffective assistance

of counsel. See United States v. Aguirre-Tello, 353 F.3d 1199, 1209 (10th Cir. 2004)

(en banc) (holding that, in order to prevail on a due process claim, an alien must

show there is reasonable likelihood he would have obtained the requested relief had

an IJ specifically advised him about that relief); Matter of Assaad, 23 I. & N. Dec.

553, 562 (BIA 2003) (requiring an alien to show he is eligible for relief in order to

establish the prejudice necessary to a successful ineffective-assistance claim

regarding such relief); see also Akinwunmi v. INS, 194 F.3d 1340, 1341 n.2 (10th Cir.

1999) (per curiam) (stating that “a claim of ineffective assistance of counsel in a

deportation proceeding may be based only on the Fifth Amendment guarantee of due

process” and requires an alien to “show that his counsel’s ineffective assistance so

prejudiced him that the proceeding was fundamentally unfair”).

      Mr. Morales also claims that the IJ did not fulfill his obligation under 8 C.F.R.

§ 1240.11(a)(2) to inform him of his apparent eligibility for either form of voluntary

departure.6 Although he raised this issue in his motion to reopen, the BIA did not


6
       In relevant part, 8 C.F.R. § 1240.11(a)(2) provides: “The immigration judge
shall inform the alien of his or her apparent eligibility to apply for any of the benefits
                                                                               (continued)
                                          - 12 -
address it. We nonetheless see no error because the purpose of a motion to reopen is

to consider new factual evidence, not mount a collateral attack on an underlying IJ

decision by advancing new claims of legal error that could have been raised (but

were not) in a merits appeal. See § 1229a(c)(7)(B) (“The motion to reopen shall state

the new facts that will be proven at a hearing to be held if the motion is granted, and

shall be supported by affidavits or other evidentiary material.”); 8 C.F.R.

§ 1003.2(c)(1) (prohibiting the BIA from granting a motion to reopen “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”).

Mr. Morales further asserts that the BIA deviated from its own policy in not

reopening the case and remanding for the IJ to properly advise him of his eligibility

for voluntary departure. However, the case he relies on, In re Mendoza Loera,

2011 WL 6962801 (BIA Dec. 8, 2011) (unpublished), did not involve a motion to

reopen but an appeal from an IJ decision.7



enumerated in this chapter and shall afford the alien an opportunity to make
application during the hearing, in accordance with the provisions of [8 C.F.R.]
§ 1240.8(d).”
7
       Mr. Morales also contends that the IJ did not give him a sufficient opportunity
to explain the circumstances surrounding the birth-certificate incident. We lack
jurisdiction to consider this argument because he did not raise it in his motion to
reopen and the BIA did not rule on it. See Garcia-Carbajal, 625 F.3d at 1238-39;
Sidabutar, 503 F.3d at 1118-22. Furthermore, for the reasons just explained in the
body of this decision, alleged error in the underlying IJ decision is not the proper
target of a motion to reopen.

                                                                              (continued)
                                         - 13 -
      Finally, Mr. Morales asks us to remand based on our “inherent authority,”

Pet’r’s Br. at 55, because there is pending legislation in Congress that may eventually

benefit him. In support of his request, he cites Ford Motor Co. v. NLRB, 305 U.S.

364 (1939), and Becerra-Jimenez v. INS, 829 F.2d 996 (10th Cir. 1987). But Ford,

on which Becerra-Jimenez relied, involved a remand to an agency, at the agency’s

request, for additional evidence and findings so the agency could reconsider “the

entire case.” Ford Motor Co., 305 U.S. at 367. The Court noted that the purpose of

the remand was to correct a “defect in the record,” id. at 373, so that the agency

could “take further action in accordance with the applicable law.” Id. at 374.

Pending legislation is not “applicable law.” Moreover, the remand in

Becerra-Jimenez concerned previously unavailable evidence and was based on

28 U.S.C. § 2347(c). See 829 F.2d at 1001-02. However, § 2347(c) is no longer an

available basis for judicial remands in reviews of removal orders or orders denying

reopening. See § 1252(a)(1) (providing that, in reviewing removal orders, a “court

may not order the taking of additional evidence under [28 U.S.C. §] 2347(c)”); Ali v.

U.S. Attorney Gen., 443 F.3d 804, 809 n.2 (11th Cir. 2006) (stating that “the


       To the extent Mr. Morales claims that Ms. Lui was ineffective before the BIA
in the merits appeal by not raising the IJ’s purported failure to advise him about
voluntary departure, he did not advance such a theory in his motion to reopen;
instead, he claimed that Ms. Lui was ineffective in not requesting post-conclusion
voluntary departure, R. at 61-62; 69-72, and in not raising that failure in the merits
appeal, see R. at 66 (“Further, had the appeal been properly litigated, . . . competent
appellate counsel would have shown that trial counsel was ineffective for not
pursuing voluntary departure . . . .”). Therefore, we lack jurisdiction to consider this
theory. See Garcia-Carbajal, 625 F.3d at 1238-39; Sidabutar, 503 F.3d at 1118-22.

                                         - 14 -
limitations on our jurisdiction to review a final order of removal . . . also control our

jurisdiction to review an order denying a motion to reopen a final order of removal”).

Hence, neither case provides a basis for us to exercise any “inherent authority” we

may possess. And in any event, courts render decisions based on existing law, not

pending legislation. See Kennedy v. Louisiana, 554 U.S. 407, 431 (2008) (stating

that it is not “sound” for a court “to find contemporary norms based upon [pending]

state legislation”). Accordingly, we deem the remand request frivolous and deny it.

III.   CONCLUSION

       The petition for review in No. 12-9583 is dismissed for lack of jurisdiction.

The petition for review in No. 13-9533 is dismissed in part for lack of jurisdiction

and denied in part.


                                                   Entered for the Court


                                                   Wade Brorby
                                                   Senior Circuit Judge




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