                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                        June 22, 2010
                       UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                         Clerk of Court
                                   TENTH CIRCUIT


 RICARDO SALAS-ACUNA,

                Petitioner,

           v.                                                 No. 09-9567

 ERIC H. HOLDER, JR., United States
 Attorney General,

                Respondent.


                              ORDER AND JUDGMENT*


Before BRISCOE, Chief Circuit Judge, TACHA, and O’BRIEN, Circuit Judges.


       After examining the briefs and the appellate record, this three-judge panel has

determined unanimously that oral argument would not be of material assistance in 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.

       Petitioner-appellant Ricardo Salas-Acuna, a native and citizen of Mexico, petitions

for review of an order of the Board of Immigration Appeals (“BIA”) denying his

application for cancellation of removal and his request for voluntary departure. Because



       *
        This order and judgment is not binding precedent except under the doctrines of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.
we lack jurisdiction to consider any of Mr. Salas-Acuna’s claims, we DISMISS his

appeal.

                                    I. BACKGROUND

          Mr. Salas-Acuna first came to the United States in 1994 and has, for the most

part, resided in Pocatello, Idaho since that time. In 1997, Mr. Salas-Acuna twice received

voluntary departure from the United States government. On the first occasion, he was

arrested in Pocatello when police discovered methamphetamine in a vehicle he was

driving. After his arrest, he met with Immigration Officer Blanca Chapa to discuss his

options. During this meeting, Ms. Chapa informed him that he could appear before an

Immigration Judge (“IJ”) in Colorado to fight his immigration case but that he would

likely have to remain incarcerated for a year before his immigration case could be heard.

Mr. Salas-Acuna testified that Ms. Chapa also informed him that if he signed a voluntary

departure form he could depart to Mexico and re-enter the United States the same way he

had previously entered. Ultimately, Mr. Salas-Acuna signed the voluntary departure form

and was escorted by federal officials to the Mexican border in April 1997. After spending

a month in Mexico, he returned to the United States.

       Mr. Salas-Acuna was again granted voluntary departure in December 1997. On

that occasion, he was arrested while riding in a stolen vehicle. Similar to the previous

incident, Mr. Salas-Acuna met with Ms. Chapa who suggested that the quickest way to

secure his release from custody would be to sign a voluntary departure form, depart the

United States, and re-enter the same way he had previously entered. Mr. Salas-Acuna

                                            -2-
signed the form and was escorted by federal officials to the Mexican border. He returned

to Mexico again for one month before he re-entered the United States.

       On March 7, 2007, the Department of Homeland Security (“DHS”) initiated

removal proceedings by serving Mr. Salas-Acuna with a Notice to Appear. At a hearing

before an IJ in January 2008, Mr. Salas-Acuna conceded removability but contested the

government’s assertion that he had entered the United States at or near San Ysidro,

California on or about December 20, 1997. Then, on April 15, 2008, he filed an

application for cancellation of removal and, alternatively, requested voluntary departure.

       In the hearing before an IJ on Mr. Salas-Acuna’s motion, DHS argued that he was

not eligible for cancellation of removal because he had not been continuously present in

the United States for ten years prior to his application due to his voluntary departures in

April and December 1997. See 8 U.S.C. § 1229b(b)(1) (mandating, as a prerequisite to

cancellation of removal, that an alien “has been physically present in the United States for

a continuous period of not less than 10 years immediately preceding the date of such

application”). Mr. Salas-Acuna countered that his voluntary departures “would not

trigger the stop-time rule because of the nature of the returns.” Specifically, Mr. Salas-

Acuna argued that Ms. Chapa led him to believe he was not being forced to return to

Mexico under threat of deportation, and therefore his voluntary departures should not

interrupt his continuous ten-year presence in the United States. The IJ rejected this

argument and concluded that Mr. Salas-Acuna had not demonstrated continuous physical

presence in the United States for ten years and was therefore ineligible for cancellation of

                                            -3-
removal. Additionally, the IJ denied Mr. Salas-Acuna’s request for voluntary departure

“as a matter of discretion.”

       On appeal to the BIA, Mr. Salas-Acuna argued that the IJ erred in finding that he

had left the United States under threat of deportation. He again relied on evidence that

Ms. Chapa had led him to believe he was not being forced out of the United States under

threat of deportation. Specifically, Mr. Salas-Acuna contended that she had explained

that he could re-enter the United States the same way he had on previous occasions. The

BIA rejected this argument and upheld the IJ’s decisions to deny Mr. Salas-Acuna’s

motion for cancellation of removal and his request for voluntary departure. Mr. Salas-

Acuna now petitions for review of that order.

                                    II. DISCUSSION

       Mr. Salas-Acuna raises three claims. First, he argues that the BIA erred in its

analysis of the continuous presence requirement by not adhering to 8 U.S.C. §

1229b(d)(2), which provides that “[a]n alien shall be considered to have failed to maintain

continuous physical presence in the United States . . . if the alien has departed from the

United States for any period in excess of 90 days or for any periods in the aggregate

exceeding 180 days.” According to Mr. Salas-Acuna, under this provision his two thirty-

day departures from the United States should not disqualify him from obtaining a

cancellation of removal. Second, Mr. Salas-Acuna argues that the BIA erred in finding

that his two voluntary departures were under a threat of deportation. Third, he argues that

the BIA erred in denying his request for voluntary departure. We lack jurisdiction to

                                            -4-
consider any of these claims.

       The failure to raise a claim that could have been raised to the BIA constitutes a

failure to exhaust administrative remedies and deprives this court of jurisdiction to hear

the claim on appeal. Rivera-Zurita v. INS, 946 F.2d 118, 120 n.2 (10th Cir. 1991). The

administrative record reflects that Mr. Salas-Acuna never raised his § 1229b(d)(2) claim

to the IJ or the BIA. Indeed, he never argued that his voluntary departures were

individually shorter than ninety days or that they were cumulatively shorter than 180

days. Accordingly, he did not exhaust his administrative remedies on this claim.

       Nevertheless, Mr. Salas-Acuna contends that he was not required to exhaust this

claim under two exceptions to the general exhaustion requirement. First, he contends that

the BIA’s decision constitutes a plain violation of an unambiguous and mandatory statute,

and therefore this unexhausted claim falls within the jurisdictional exception articulated

in Leedom v. Kyne, 358 U.S. 184 (1958). Generally, the Leedom exception allows courts

to consider claims over which they would not ordinarily have jurisdiction “when [an]

agency order is ‘an attempted exercise of power that ha[s] been specifically withheld.’”

U.S. Dep’t of Interior v. FLRA, 1 F.3d 1059, 1061 (10th Cir. 1993) (quoting Leedom, 358

U.S. at 189). We have stated that the Leedom exception is “of very limited scope” and

that it may “be invoked only in exceptional circumstances.” Id. (internal quotations

omitted).

       With § 1229b(d)(2), Congress expressly withheld from the Attorney General the

power to grant a cancellation of removal “if [an] alien has departed from the United

                                            -5-
States for any period in excess of 90 days or for any periods in the aggregate exceeding

180 days.” 8 U.S.C. § 1229b(d)(2); see also id. § 1229b(b)(1)(A) (allowing the Attorney

General to cancel removal only if the alien “has been physically present in the United

States for a continuous period of not less than 10 years . . .”). That provision, however,

does not prohibit the denial of a cancellation of removal when the alien has voluntarily

departed but has not been absent from the United States for any single ninety-day period

or for any periods in the aggregate exceeding 180 days. Because § 1229b(d)(2) does not

expressly prohibit the action of the BIA in this case, Mr. Salas-Acuna’s unexhausted

claim does not fall within the narrow Leedom exception.

       Mr. Salas-Acuna also claims that he was not required to exhaust his § 1229b(d)(2)

claim because it would have been futile to do so. Specifically, he argues that the BIA had

already resolved this issue contrary to his position and was not likely to reverse its

precedent. We have recognized in various contexts that “exhaustion is not required where

it would be futile or fail to provide adequate relief.” McQueen v. Colorado Springs Sch.

Dist. No. 11, 488 F.3d 868, 874 (10th Cir. 2007) (quotations and alterations omitted). We

have also held, however, that “a party may not consider it to be futile to lodge an

objection before an administrative body simply because the body has precedent which

contradicts the party’s position.” Tinker Air Force Base v. FLRA, 321 F.3d 1242, 1248

(10th Cir. 2002). Accordingly, Mr. Salas-Acuna’s contention that it would have been

futile to raise his § 1229b(d)(2) claim to the BIA is belied by our precedent. And,

because he fails to demonstrate that any exception to the exhaustion requirement applies,

                                             -6-
we dismiss Mr. Salas-Acuna’s first claim on appeal for failure to exhaust administrative

remedies.

       We also lack jurisdiction to consider Mr. Salas-Acuna’s second claim. Under 8

U.S.C. § 1252(a)(2)(B)(i), “no court shall have jurisdiction to review any judgment

regarding the granting of relief under section . . . 1229b.” We have held, however, that

this statute “prohibit[s] review only of those ‘judgments’ that are discretionary in nature,”

Sabido Valdivia v. Gonzales, 423 F.3d 1144, 1149 (10th Cir. 2005), as well as any factual

determinations underlying such discretionary judgments. Arambula-Medina v. Holder,

572 F.3d 824, 828 (10th Cir. 2009). Indeed, we “retain jurisdiction to review non-

discretionary decisions under § 1229b.” Sabido Valdivia, 423 F.3d at 1148.

       In his second claim, Mr. Salas-Acuna argues that the BIA erred in denying his

application for cancellation of removal because it incorrectly found that his two voluntary

departures were undertaken under a threat of deportation. As discussed above, §

1229b(d)(2) expressly deprives the Attorney General of discretion to grant a cancellation

of removal if an alien has been absent from the United States for any single 90-day period

or for any periods in the aggregate exceeding 180 days. Accordingly, we have exercised

jurisdiction over the question whether an alien has been absent from the United States for

a single ninety-day period. Id. at 1149. Unlike a question regarding the length of an

alien’s absence, however, the question whether an alien departed under threat of

deportation does not implicate a non-discretionary aspect of the BIA’s decision. Indeed,

Congress has not mandated that the Attorney General cancel removal of an alien who has

                                            -7-
left without the threat of deportation, nor has it prohibited the Attorney General from

cancelling the removal of an alien who has left under the threat of deportation. Thus,

whether Mr. Salas-Acuna’s two voluntary departures in 1997 were under a threat of

deportation is a factual question underlying a discretionary aspect of the BIA’s decision

concerning cancellation of removal which we are prohibited from reviewing under §

1252(a)(2)(B)(i). See id. (“[Section] 1252(a)(2)(B)(i) bars this court’s review of any

discretionary aspect of a BIA decision concerning cancellation of removal.”).

       We likewise lack jurisdiction to consider Mr. Salas-Acuna’s claim that the BIA

erred in denying his request for voluntary departure. See 8 U.S.C. § 1229c(f). Indeed, we

have previously held that we lack jurisdiction to review any final agency ruling which

denies a request for voluntary departure. Ekasinta v. Gonzales, 415 F.3d 1188, 1190

(10th Cir. 2005).

                                   III. CONCLUSION

       For the foregoing reasons, we lack jurisdiction to consider any of Mr.

Salas-Acuna’s claims. Accordingly, we DISMISS his appeal. Additionally, because Mr.

Salas-Acuna has not demonstrated an inability to pay, we DENY his request to proceed in




                                            -8-
forma pauperis on appeal. He is obligated to pay the entire amount of the appellate filing

fee forthwith.

                                         ENTERED FOR THE COURT,



                                         Deanell Reece Tacha
                                         Circuit Judge




                                           -9-
09-9567, Salas-Acuna v. Holder

BRISCOE, Chief Judge, concurring and dissenting.


       I concur with the majority decision as it relates to Salas-Acuna’s first and third

claims. However, because it is clear that we retain jurisdiction to entertain Salas-Acuna’s

claim that the Board of Immigration Appeals (“BIA”) incorrectly determined that his

previous voluntary departures from the United States were under the threat of deportation,

I respectfully dissent from the majority’s dismissal of this claim. Rather, I would reach

the merits of this claim and affirm the ruling of BIA.

       The majority correctly notes that we “retain jurisdiction to review non-

discretionary decisions reached under [8 U.S.C.] § 1229b.” Sabido Valdivia v. Gonzales,

423 F.3d 1144, 1148 (10th Cir. 2005). The majority is, however, incorrect in its assertion

that “the question of whether an alien departed under threat of deportation does not

implicate a non-discretionary aspect of the BIA’s decision.” Maj. O&J at 7.

       The BIA has determined that an alien who voluntarily departs the United States

under threat of deportation breaks his or her period of continuous physical presence for

the purposes of § 1229b(1)(A). In re Romalez-Alcaide, 23 I. & N. Dec. 423, 429 (2002)

(en banc). And as our sister circuits have previously noted, the BIA’s interpretation of §

1229b(1)(A) is entitled to Chevron deference.1 See Ascencio-Rodriguez v. Holder, 595

F.3d 105, 112 (2d Cir. 2010) (“We hold today that the BIA’s interpretation of the


       1
        Notably, Salas-Acuna does not challenge the BIA’s interpretation of §
1229b(1)(A). Rather, he merely challenges the efficacy of the BIA’s adjudication of his
case, which was undertaken pursuant to this interpretation.
cancellation of removal statute expressed in [In re Romalez-Alcaide] is reasonable and is

entitled to Chevron deference.”); accord Gutierrez v. Mukasey, 521 F.3d 1114, 1116 (9th

Cir. 2008); Reyes-Vasquez v. Ashcroft, 395 F.3d 903, 906-08 (8th Cir. 2005); Mireles-

Valdez v. Ashcroft, 349 F.3d 213, 217-18 (5th Cir. 2003). Thus, when the BIA

determines whether an alien has previously voluntarily left the United States under threat

of deportation, it is not exercising discretion. Rather, such a determination simply

“involves straightforward statutory interpretation and application of law to fact.”

Mireles-Valdez, 349 F.3d at 217 (5th Cir. 2003); accord Reyes-Vasquez, 395 F.3d at 906

(8th Cir. 2005) (noting that “the IJ did not exercise discretionary authority because he

determined that [the petitioner] was ineligible for relief” due to the fact that he had

voluntarily departed the United States under threat of deportation).

       Accordingly, we retain jurisdiction to review the BIA’s determination that Salas-

Acuna voluntarily left the United States under threat of deportation and thus, I would

reach the merits of Salas-Acuna’s second claim. Because, however, Salas-Acuna has

failed to demonstrate that any reasonable adjudicator would be compelled to conclude

that the BIA’s factual determinations were erroneous, see Sarr v. Gonzales, 474 F.3d 783,

788-89 (10th Cir. 2007) (noting that BIA decisions are reviewed for “substantial

evidence” and thus, that the BIA’s “findings of fact are conclusive unless the record

demonstrates that any reasonable adjudicator would be compelled to conclude to the

contrary” (quotation and citation omitted)); accord Gutierrez, 521 F.3d at 1116-18

(reviewing an IJ’s determination that the petitioner voluntarily left under threat of

                                             -2-
deportation under a substantial evidence standard), I would nonetheless affirm the

decision of the BIA.




                                           -3-
