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

                           FOR THE TENTH CIRCUIT                           July 3, 2014

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
JORGE SIFUENTES-FELIX,

             Petitioner,

v.                                                         No. 13-9546
                                                       (Petition for Review)
ERIC H. HOLDER, JR., United States
Attorney General,

             Respondent.


                            ORDER AND JUDGMENT*


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


      Jorge Sifuentes-Felix, a native and citizen of Mexico, petitions for review of

the Board of Immigration Appeals’ (BIA) decision affirming the Immigration Judge’s

(IJ) order of removal. We dismiss the petition for lack of jurisdiction.

      Mr. Sifuentes-Felix unlawfully entered the United States in June 1985. In

December 2009, he pleaded guilty to engaging in unlawful sexual contact--being a


*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
peeping tom--in violation of former Colo. Rev. Stat. § 18-3-404(1.7).1 A year later,

the Department of Homeland Security (DHS) began removal proceedings by issuing

a notice to appear. After conceding he was subject to removal because he had not

been admitted or paroled into the United States, Mr. Sifuentes-Felix applied for

cancellation of removal, see 8 U.S.C. § 1229b(b)(1), or, alternatively, voluntary

departure, id. § 1229c(b). At an initial hearing, the IJ informed him that it was his

burden to prove that nothing impeded the granting of such discretionary relief.

      The DHS moved to pretermit the application for cancellation of removal,

alleging that Mr. Sifuentes-Felix was ineligible because his conviction was

categorically a crime involving moral turpitude (CIMT). Also, the DHS asserted that

he had not met his burden to provide documentation that he was not convicted of a

CIMT.

      The IJ granted the motion to pretermit Mr. Sifuentes-Felix’s application for

cancellation of removal. See id. §§ 1182(a)(2)(A) (denying admissibility to alien

who commits CIMT); 1229b(b)(1)(C) (permitting cancellation of removal if, among

other things, alien has not been convicted of CIMT). Also, the IJ denied voluntary

departure because his conviction precluded him from showing that he was of good

moral character for the preceding five years. See id. § 1229c(b)(1)(B).
1
      At the time of his conviction, the statute provided in relevant part that: “Any
person who knowingly observes . . . another person’s intimate parts without that
person’s consent, in a situation where the person observed has a reasonable
expectation of privacy, for the purpose of the observer’s own sexual gratification,
commits unlawful sexual contact.” Colo. Rev. Stat. § 18-3-404(1.7)(a).


                                          -2-
      Mr. Sifuentes-Felix appealed, seeking remand and asserting that the IJ should

have applied the modified categorical approach and looked at his conviction record

when deciding if he had been convicted of a CIMT. He did not challenge the IJ’s

determination that he bore the burden to prove his conviction did not impede his

eligibility for cancellation of removal. Nor did he challenge the determination that

his lack of good moral character precluded voluntary departure.

      The BIA dismissed the appeal, holding that Mr. Sifuentes-Felix had not shown

that his conviction was not categorically a conviction for a CIMT because he did not

“adequately point[] to his own case or other cases in which the Colorado courts in

fact did apply the ‘Peeping Tom’ statute to reach non-morally turpitudinous

behavior.” Admin R. at 5. Recognizing that Mr. Sifuentes-Felix bore the burden to

establish his eligibility for relief from removal, see 8 U.S.C. § 1229a(c)(4)(A)(i);

8 C.F.R. § 1240.8(d), the BIA noted that he did not dispute the IJ’s determination

that he bore the burden of showing that his conviction was not a conviction for a

CIMT. See Admin. R. at 4 n.2 (“On appeal, [Mr. Sifuentes-Felix] does not dispute

the premise of the [IJ’s] decision: absent a showing that [his] ‘Peeping Tom’

conviction is not a conviction for a [CIMT], he is unable to establish eligibility for

relief.”); id. at 5 (“As [Mr. Sifuentes-Felix] does not dispute that, absent a showing

that his conviction under this statute does not categorically constitute a conviction for

a [CIMT], he is unable to establish eligibility for relief from removal . . . .”). Thus,




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the BIA affirmed the IJ’s denial of relief from removal. This petition for review

followed.

      “Because a single member of the BIA decided [Mr. Sifuentes-Felix’s] appeal

and issued a brief opinion, we review the BIA’s decision as the final agency

determination and limit our review to issues specifically addressed therein.” Kechkar

v. Gonzales, 500 F.3d 1080, 1083 (10th Cir. 2007) (internal quotation marks

omitted). We review jurisdictional questions de novo. Huerta v. Gonzales, 443 F.3d

753, 755 (10th Cir. 2006).

      Mr. Sifuentes-Felix argues that Moncrieffe v. Holder, 133 S. Ct. 1678 (2013),

which concerned removability, overruled the holding in Garcia v. Holder, 584 F.3d

1288, 1290 (10th Cir. 2009), that an alien bears the burden to prove that a conviction

is not a CIMT. He maintains that under Moncrieffe, the burden of proof is irrelevant

because the question whether a conviction bars relief is a legal question, so he need

not establish the categorization for his crime. Further, he notes that it is often

impossible for an alien to prove categorization. Additionally, Mr. Sifuentes-Felix

contends that there was no conclusive proof that his conviction disqualified him from

relief because the agency never considered the criminal documents. Lastly,

Mr. Sifuentes-Felix argues that even under the categorical approach, his conviction

was not a CIMT, because the BIA incorrectly applied the generic-definition test set

out in Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007), and did not compare




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the Colorado statute to the generic federal statute for video voyeurism, 18 U.S.C.

§ 1801(a).2

        The government, however, counters that all of Mr. Sifuentes-Felix’s

challenges are unexhausted, and therefore this court lacks jurisdiction to consider

them.

        It is settled that “we only retain jurisdiction over claims challenging a final

order of removal ‘if the alien has exhausted all administrative remedies available . . .

as of right.’” Torres de la Cruz v. Maurer, 483 F.3d 1013, 1017 (10th Cir. 2007)

(quoting 8 U.S.C. § 1252(d)(1)). Thus, we have jurisdiction only over claims raised

and exhausted before the BIA. See id. If an issue could have been raised before the

BIA, but was not, there is a failure to exhaust administrative remedies. Soberanes v.

Comfort, 388 F.3d 1305, 1308-09 (10th Cir. 2004). The alien must present the same

specific legal theory to the BIA before he may assert it in a petition for review.

See Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237, 1238 (10th Cir. 2010).

        The record is clear that Mr. Sifuentes-Felix failed to exhaust his administrative

remedies. He never raised his burden-of-proof claim before the BIA, despite being

informed by the IJ that he bore the burden of proving his eligibility for relief from

removal. Also, as stated above, the BIA expressly noted that he did not challenge the


2
       Section 1801(a) provides that: “Whoever . . . has the intent to capture an
image of a private area of an individual without their consent, and knowingly does so
under circumstances in which the individual has a reasonable expectation of privacy,
shall be fined under this title or imprisoned not more than one year, or both.”


                                            -5-
IJ’s premise that the burden of proof rested with him. Nor did Mr. Sifuentes-Felix

contest before the agency that his crime did not fit within the generic-definition test

of Duenas-Alvarez. Thus, “[j]udicial review does not extend to points [he] could

have made before the [BIA] but did not.” Rivera-Zurita v. INS, 946 F.2d 118, 120

n.2 (10th Cir. 1991).

      In his reply brief, Mr. Sifuentes-Felix argues that he is raising constitutional

claims, which are an exception to the exhaustion requirement. See Vicente-Elias v.

Mukasey, 532 F.3d 1086, 1094 (10th Cir. 2008) (declining to “require[] exhaustion of

‘constitutional challenges to the immigration laws, because the BIA has no

jurisdiction to review such claims’” (quoting Akinwunmi v. INS, 194 F.3d 1340, 1341

(10th Cir. 1999) (per curiam)). Assuming he raises constitutional claims--

presumably involving a denial of due process--the exception to the exhaustion

requirement does not extend to “administratively correctable procedural defect[s]”

that are later framed as constitutional claims, such as due process. Vicente-Elias,

532 F.3d at 1094-95 (distinguishing between procedural due process and “substantive

constitutional claim for relief independent of the statutory provisions the BIA is

authorized to enforce”). Consequently, Mr. Sifuentes-Felix cannot now for the first

time raise burden-of-proof or Duenas-Alvarez claims that he could have raised in a

motion to reopen before the BIA. See Akinwunmi, 194 F.3d at 1341 (recognizing

BIA has authority to reopen cases to fix due-process errors).




                                          -6-
      Mr. Sifuentes-Felix did file with the BIA a motion to reopen, alleging only

ineffective assistance of counsel during administrative proceedings.3 See Soberanes,

388 F.3d at 1309 (noting that complaints about counsel should be raised in motion to

reopen). He argues in his reply brief that he should not be punished for his

incompetent counsel’s performance during administrative proceedings. But he did

not file a petition for review from the BIA’s denial of the motion to reopen, and it is

too late for him to do so now. See Infanzon v. Ashcroft, 386 F.3d 1359, 1361

(10th Cir. 2004) (recognizing BIA’s ruling on motion to reopen is separate,

reviewable order); see also 8 U.S.C. § 1252(b)(1) (establishing thirty-day time period

for filing petition for review). Thus, any complaints he has about his prior counsel’s

performance are not properly before us.

      In conclusion, because Mr. Sifuentes-Felix failed to exhaust his administrative

remedies with respect to any of the claims he raises in his petition for review, we lack

jurisdiction to consider them. Accordingly, we dismiss the petition for review.


                                                Entered for the Court


                                                Mary Beck Briscoe
                                                Chief Judge
3
       Although Moncrieffe was filed shortly after the BIA dismissed his appeal,
Mr. Sifuentes-Felix did not include an argument in his motion to reopen based on
Moncrieffe. See Sidabutar v. Gonzales, 503 F.3d 1116, 1122 (10th Cir. 2007)
(stating unexhausted claims “should have been brought before the BIA in the first
instance through a motion to reconsider or reopen”).



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