                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-18-2004

Espinoza-Cisneros v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3021




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                                               NOT PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT


           Nos. 03-3021 & 03-4293


        JUAN ESPINOZA-CISNEROS

                   Appellant

                       v.

 JOHN ASHCROFT, ATTORNEY GENERAL

                   Appellee.




     On petition for review of a final order
     of the Board of Immigration Appeals
             File No: A72-503-256




Submitted pursuant to Third Circuit LAR 34.1(a)
            on September 28, 2004

       Before: RENDELL, FUENTES,
         and SMITH, Circuit Judges

           (Filed: October 18, 2004)

           ____________________

         OPINION OF THE COURT
          _____________________
FUENTES, Circuit Judge.

       Petitioner Juan Espinoza-Cisneros challenges two orders by the Board of

Immigration Appeals (“BIA”) denying his appeal and motion for reconsideration of an

order of removal entered by the immigration judge. His primary contentions on appeal

are that (1) the crime of reckless endangerment is not a crime involving moral turpitude

for purposes of the Immigration and Nationalization Act (“INA”), and (2) he was entitled

to a new hearing before the immigration judge (“IJ”) for consideration of his application

for adjustment of status. Because Petitioner failed to exhaust the first issue on appeal to

the BIA, and because he shows no prejudice arising from the BIA’s failure to remand his

application for adjustment of status to an IJ, we will deny the petition.

                                              I.

       Espinoza-Cisneros, a citizen of Mexico, arrived in the United States in March

1998 without inspection. In December 2001, the Immigration and Naturalization

Service1 (INS) began removal proceedings through the issuance of a Notice to Appear.

The INS alleged that Espinoza-Cisneros was removable because he was present without



  1
    The INA was amended by the Homeland Security Act of 2002, Pub. L. No. 107-
296, § 471, 116 Stat. 2135, 2192, 2205 (Nov. 25, 2002), which, on March 1, 2003,
transferred the functions of the INS to various bureaus, including the Bureau of
Citizenship and Immigration Services within the Department of Homeland Security. See
generally 1 Gordon, M ailman, & Yale-Loehr, Immigration Law and Procedure
1:SA1-1-2. The functions of the Executive Office for Immigration Review continue to
reside in the Department of Justice, under the direction of the Attorney General. For ease
of reference, this opinion refers to the agency as the INS.

                                              2
having been admitted or paroled as provided in INA § 212(a)(6)(A)(I), 8 U.S.C.

§ 1182(a)(6)(A)(I). Espinoza-Cisneros admitted the allegations of the INS but sought

relief in adjustment of status based on his marriage to a permanent resident.

       The INS subsequently lodged another charge against Espinoza-Cisneros alleging

that he had been convicted on November 5, 2001 in the Court of Common Pleas of Berks

County Pennsylvania for reckless endangerment of his wife (then girlfriend) and their

three-year old son. The INS further alleged that, as a result of that conviction, Espinoza-

Cisneros was removable for having been convicted of a crime involving moral turpitude

pursuant to INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I). The INS also

offered evidence to the immigration judge that Espinoza-Cisneros was arrested seven

times in the United States since 1994.

       Espinoza-Cisneros then requested a continuance of his removal proceedings to

allow the INS to adjudicate a family preference petition filed by his wife. The

immigration judge rejected that request and ordered him removed to Mexico. On May

17, 2002, Espinoza-Cisneros filed an appeal of that request with the BIA.

       On January 8, 2003, Espinoza-Cisneros filed a motion to remand with the BIA

based on the intervening approval of the I-130 petition filed by his wife, claiming that

her naturalization as a United States citizen rendered him eligible to apply for adjustment

of status to permanent resident. The BIA dismissed Espinoza-Cisneros’ appeal and

denied his motion to remand. The BIA also denied Espinoza-Cisneros’ subsequent


                                             3
motion to reconsider the BIA’s previous Order.

          Espinoza-Cisneros then petitioned this Court. He argues that: first, his conviction

for the crime of reckless endangerment does not render him removable because it was not

a crime of moral turpitude; second, he is eligible for adjustment of status, which would

prevent his removal, and; third, his right to due process of law was violated because he

was denied a hearing before an immigration judge on his application for adjustment of

status.

          We conclude that because Espinoza-Cisneros did not earlier contest the IJ’s

finding that he was convicted of a crime of moral turpitude, and therefore failed to

exhaust his administrative remedies, we are without jurisdiction to review the IJ’s

findings. We also hold that Espinoza-Cisneros has failed to show the prejudice requisite

to a due process violation.

                                                 II.

          In this case, Petitioner argues first and foremost that the IJ erred in finding that the

crime of reckless endangerment under Pennsylvania law constitutes a crime of moral

turpitude under the INA. Specifically, he contends that reckless endangerment in

Pennsylvania does not contain the elements of “evil intent” or “knowledge” that must be

present in a statute to qualify it as a crime involving moral turpitude. He also claims that

reckless endangerment does not amount to a crime of moral turpitude because the BIA

itself has consistently held that moral turpitude does not lie in criminally reckless conduct.



                                                  4
       The problem for Petitioner is that during his administrative appeal, he failed to

challenge the immigrations judge’s findings on the moral turpitude issue in either his

appellate brief or notice of appeal. Generally, “a court may review a final order of

removal only if ...the alien has exhausted all administrative remedies available to the alien

as of right...” INA § 242(d)(1), 8 U.S.C. § 1252(d)(1). This statutory requirement is

intended to insure that “the agency responsible for construing and applying the

immigration laws and implementing regulations [] has had a full opportunity to consider a

petitioner’s claims before they are submitted for review by a federal court.”

Theodoropoulos v. INS, 358 F.3d 162, 171 (2d Cir 2004). The requirement compels

Petitioner “to raise and exhaust his...remedies as to each claim or ground for relief if

he...is to preserve the right of judicial review of that claim.” Abdulrahman v. Ashcroft,

330 F.3d 587, 594-95 (3d Cir. 2003). There is no doubt that the issue of whether reckless

endangerment constituted a crime of moral turpitude was squarely within the Board’s

competence and jurisdiction to review.2

       Espinoza-Cisneros argues that this Court does not lack jurisdiction because, in his

reading, the immigration judge failed to identify the crime of moral turpitude on which

his decision rested. However, though the IJ pointed to a variety of criminal activity in


  2
    When we apply the rule of exhaustion as a matter of discretion, we may review
strictly legal questions of constitutional or statutory interpretation that do not implicate
the special expertise of an administrative agency. See Facchiano v. Dept. of Labor, 859
F.2d 1163, 1167-68 (3d Cir. 1988). But when the exhaustion requirement is statutorily
imposed, as is the case here, the legal question exception is unavailable. Id.

                                              5
which Espinoza-Cisneros may have been involved, the immigration judge characterized

only Espinoza-Cisneros’ conviction for reckless endangerment as a crime of moral

turpitude and specifically referred to it as justification for his decision to remove

Espinoza-Cisneros notwithstanding the latter’s pending I-130 application. See Oral Dec.

of the Imm. Judge, at 1-2.

       By not appealing the IJ’s findings to the Board, Petitioner has failed to provide the

Board with an opportunity to consider his claims and he has therefore failed to exhaust

his administrative remedies. Accordingly, we are without jurisdiction to review this issue

on appeal and therefore need not reach the other challenges to jurisdiction posed by

Respondent, or Petitioner’s arguments regarding his eligibility for adjustment of status.

                                             III.

       Espinoza-Cisneros also argues that the BIA’s denial of his motion for remand

deprived him of an opportunity to be heard on his application for adjustment of status

and therefore violated his right to due process of law. In light of the full proceedings

that had already taken place in connection with his earlier request for a continuance,

Petitioner essentially claims that he was entitled to an entirely separate, second hearing

before an immigration judge on his application for adjustment of status. We disagree.

Due process entitles the Petitioner only to “the opportunity to be heard at a meaningful

time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976); see

also Dia v. Ashcroft, 353 F.3d 228, 239 (3d Cir. 2003). Petitioner has not shown that he


                                              6
was denied such an opportunity.

       Specifically, Petitioner has not explained why a second hearing before the IJ

would have made any difference. See Wilson v. Ashcroft, 350 F.3d 377, 381(3d Cir.

2003) (observing that there is “no due process violation in the absence of prejudice”).

Espinoza-Cisneros’ own characterization of the proceedings before the BIA concedes

that it explicitly weighed the equities for and against adjustment of status. See Pet. Br. at

26-27; BIA Dec. at 2.

       Petitioner nevertheless insists that it was wrong for the BIA to presume that the

immigration judge would reject his application. However, the immigration judge’s

position on Petitioner’s application was abundantly clear. The BIA correctly noted that

the immigration judge refused to continue removal proceedings in favor of Espinoza-

Cisneros’ wife’s immediate relative petition, contrary to what the judge described as his

normal practice, because he deemed Petitioner’s record in the United States “abysmal.”

BIA Decision, at 1-2; Oral Dec. of the Imm. Judge, at 2. Petitioner has not pointed to

any new evidence or arguments he would have made to the immigration judge upon

remand. Therefore, Petitioner was not prejudiced by the BIA’s refusal to remand

Petitioner’s motion for adjustment of status. See Wilson, 350 F. 3d at 381.

       Petitioner’s other arguments on appeal are without merit and require no further

discussion. We note that Espinoza-Cisneros may yet re-enter the United States if he

applies for and is granted a visa under the special exemption from immigration


                                             7
limitations available to spouses of United States citizens and other “immediate relatives,”

INA § 201(b)(2)(A)(I), and is further granted a waiver of INA § 212(a)(9)(B)(i)(II) under

INA § 212(a)(9)(B)(v). 8 U.S.C. § 1151(b)(2)(A)(I); § 1182(a)(9)(B). But for the

foregoing reasons, this Court may not review the existing order for his removal.

       We will deny the petition for review.




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