                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-2459


RAFAEL TISCARENO-GARCIA,

                Petitioner,

           v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.



On Petition for Review of an Order of the Board of Immigration
Appeals.


Argued:   October 30, 2014                    Decided:    March 3, 2015

                      Amended:      March 6, 2015


Before TRAXLER,   Chief    Judge,    and   KING   and   THACKER,   Circuit
Judges.


Petition for review denied in part and dismissed in part by
published opinion.   Chief Judge Traxler wrote the opinion, in
which Judge King and Judge Thacker joined.


ARGUED: Martin M. Rosenbluth, LAW OFFICES OF MARTIN ROSENBLUTH,
Burlington, North Carolina; Derrick J. Hensley, LAW OFFICE OF
DERRICK J. HENSLEY, Durham, North Carolina, for Petitioner.
John William Blakeley, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.    ON BRIEF: Stuart F. Delery,
Assistant Attorney General, Civil Division, Erica Miles, Senior
Litigation Counsel, Office of Immigration Litigation, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
TRAXLER, Chief Judge:

     Rafael Tiscareno-Garcia petitions for review of an order of

removal    of   the    Board     of    Immigration             Appeals       (“BIA”)    which

determined that Tiscareno-Garcia cannot establish the good moral

character required to apply for cancellation of removal, see 8

U.S.C. § 1229b(b)(1)(B), as a result of his serving 181 days in

jail for an illegal-entry conviction, see 8 U.S.C. § 1101(f)(7).

We deny the petition in part and dismiss it in part.

                                             I.

     Tiscareno-Garcia is a Mexican national.                              Between March 8,

1999, and November 3, 2000, border patrol agents apprehended

Tiscareno-Garcia three times for being present in the United

States     illegally;     each        time       he      was    permitted        to    return

voluntarily     to    Mexico.          Not        long    after        his    last     arrest,

Tiscareno-Garcia       illegally        entered          the        United    States    again

without inspection.       This time, however, he was able to make his

way up to Raleigh, North Carolina, where he avoided apprehension

for 10 years.

     On    November     15,    2010,     agents          from       the     Immigration   and

Customs    Enforcement        (“ICE”)        division          of     the    Department       of

Homeland    Security    (“DHS”)        arrested          Tiscareno-Garcia            during   a

workplace raid and charged him with illegal entry in violation

of 8 U.S.C. § 1325(a), a misdemeanor offense that carries a



                                             2
sentence of “not more than 6 months” imprisonment.                          In March

2011, Tiscareno-Garcia pled guilty and served 181 days.

      DHS served Tiscareno-Garcia with a Notice to Appear (“NTA”)

before he went to jail, charging that he was subject to removal

as a result of entering “without being admitted or paroled.”                           8

U.S.C. § 1182(a)(6)(A)(i); see 8 U.S.C. § 1227(a)(1).                              After

Tiscareno-Garcia had served his sentence and was released, DHS

commenced removal proceedings against him.

      Tiscareno-Garcia      conceded        removability      and        applied     for

cancellation of removal.        He argued that his removal would cause

“exceptional      and    extremely     unusual    hardship”         to     his     three

citizen children, especially his 10-year-old autistic son.                         And,

except for the fact that he entered the United States illegally

a decade before, Tiscareno-Garcia appears to have been a law-

abiding member of society and a devoted father and provider for

his children.

      The   government,     however,    moved    to   “pretermit”          Tiscareno-

Garcia’s application, arguing that his 181 days of confinement

barred     him   from   establishing    “good    moral     character”        under     §

1101(f)(7).      In response, Tiscareno-Garcia argued that the crime

he   was    incarcerated    for—illegal       entry   under    §     1325(a)—is        a

misdemeanor offense that does not constitute a crime of moral

turpitude, and therefore should not be used to defeat a showing

of “good moral character.”           Moreover, he argued that in making

                                        3
cancellation     of       removal    available           to     aliens      who    are     present

illegally (either because they entered illegally or because they

violated the terms of their stay after being legally admitted),

Congress assumed that those applying for relief would be guilty

of   illegal    entry       and    therefore           could    not    have       meant    to    bar

aliens from applying for relief based on a § 1325(a) conviction.

       The IJ agreed with the government that Tiscareno-Garcia was

statutorily ineligible for cancellation of removal and dismissed

Tiscareno-Garcia’s application.                       The IJ found that § 1101(f)(7)

plainly and unambiguously precludes an alien from establishing

good moral character based on the length of incarceration, not

the type of offense.                The IJ also found that the statutory

scheme, according to the plain language, was coherent and not

absurd.     The IJ noted that the statute enumerates certain types

of   offenses    (regardless            of    the       resulting      time       served)       that

categorically bar a finding of good moral character but that

illegal entry is not included in this list.                                 The IJ observed

that    §   1101(f)(7)        is    a     catch-all            for    any    other        offense,

regardless      of    type,       that    resulted         in    180     days      or     more    of

confinement.          The    IJ     concluded           that    illegal       entry       under    §

1325(a) would fall under this provision only if the alien served

enough time and noted that illegal entry is not a crime that

would   render       an   alien     per      se       ineligible      for   cancellation          of

removal.

                                                  4
      The BIA affirmed, concluding that the Agency is bound by

the plain language of the text.                 Relying on the plain language

of   the      statute,      the    BIA    agreed       with     the       IJ     that    the

applicability of § 1101(f)(7) does not depend upon the type of

offense,       and    that        Tiscareno-Garcia            was     precluded         from

establishing good moral character and, as a result, that he was

ineligible for cancellation of removal.

                                          II.

      In      interpreting        statutes,       we     must        first       determine

legislative intent.           See Chevron U.S.A. Inc. v. Natural Res.

Def. Council, Inc., 467 U.S. 837, 842 (1984).                        “If the intent of

Congress is clear, that is the end of the matter; for the court,

as well as the agency, must give effect to the unambiguously

expressed intent of Congress.”             Id. at 842-43.             Tiscareno-Garcia

concedes that § 1101(f)(7) is clear and unambiguous, and he does

not disagree that a literal application of the statute precludes

him from being “regarded as, or found to be, a person of good

moral      character,”   which,      in   turn,    renders          him   ineligible      to

apply for cancellation of removal under § 1229b(b).                                  But he

thinks that it is an absurd result where aliens are barred from

applying for cancellation of removal based on an illegal entry

conviction-the       same     illegal     entry        that    rendered        the      alien

removable and necessitated applying for cancellation of removal

in   the    first    place.       Tiscareno-Garcia        asserts         that    Congress

                                           5
could not have intended to offer the hope of relief with one

hand and pull it back with the other, and he argues that we are

therefore not bound by the clear and unambiguous language of the

statute.

     It is true that in “exceptionally rare” instances where

“a literal reading of a statute produces an outcome that is

demonstrably at odds with clearly expressed congressional intent

to the contrary, or results in an outcome that can truly be

characterized as absurd, i.e., that is so gross as to shock the

general moral or common sense,” Sigmon Coal Co. v. Apfel, 226

F.3d 291, 304 (4th Cir. 2000) (citations and internal quotation

marks omitted), aff’d sub nom. Barnhart v. Sigmon Coal Co., 534

U.S. 438, 442 (2002), we can look past the statute’s plain and

ordinary   meaning,    see     Crooks     v.   Harrelson,   282   U.S.    55,   60

(1930) (explaining that a court will “override the literal terms

of a statute only under rare and exceptional circumstances” when

application of the literal terms produces an “absurdity . . . so

gross as to shock the general moral or common sense”).                   As this

court has noted previously, however, “we are more than a little

hesitant to abandon the presumption that Congress meant what it

said, or did not say, when the words of a statute are plain,”

Sigmon Coal, 226 F.3d at 305, in view of the fact that “the sole

function   of   the   courts    is   to   enforce   [the    relevant     statute]



                                          6
according to its terms,” Caminetti v. United States, 242 U.S.

470, 485 (1917).

      Tiscareno-Garcia urges us to conclude that this is one of

those     “exceptionally       rare”       instances       in   which     the     literal

application of a Congressional enactment produces truly absurd

results.       His    absurdity      argument      distills     to   this:       Because

Congress    clearly      intended         to   make    relief   available        under   §

1229b(b) to persons who entered the United States illegally in

violation of § 1325(a), precluding an alien from applying for

relief    based      solely    on    an    illegal     entry    conviction       under   §

1325(a) “directly contradicts” Congressional intent.                         Tiscareno-

Garcia     submits      that    “virtually         all”     nonpermanent        resident

applicants for cancellation of removal could be charged with and

convicted of illegal entry under federal law, which would make

any   relief    from     removal      offered      under    §   1229b(b)        illusory.

Tiscareno-Garcia contends that to avoid such an absurd result,

the court must read an exception into sections 1229b(b)(1)(B)

and § 1101(f)(7) for any person who was confined as a result of

a conviction under § 1325(a).

      Tiscareno-Garcia has fallen far short of demonstrating a

truly absurd result here—one so preposterous that it “shock[s]

the general moral or common sense.”                     Crooks, 282 U.S. at 60.

The   result    compelled       by    the      plain   language      is   clearly    not

absurd.     Read together, sections 1229b(b) and 1101(f) present a

                                               7
coherent      scheme      that     reasonably               affords          the     discretionary

immigration        benefit       of        cancellation               of     removal       to    some

nonpermanent        residents     but       not       to    others.          Under     §   1101(f),

Congress delineated a number of categories that, if applicable,

bar   an    alien     from   establishing                  his       “good    moral     character”

including some based on conduct that is antithetical to “good

moral character,” see, e.g., 8 U.S.C. § 1101(f)(1) (“habitual

drunkard[s]”);        8   U.S.C.       §    1101(f)(4)               (“one    whose     income     is

derived     principally      from          illegal         gambling          activities”),        and

others based on the fact of a conviction for a serious offense

or    a    crime    involving         moral       turpitude,               regardless      of    time

actually served, see 8 U.S.C. §§ 1101(f)(3) & (8).                                           Another

category—the        one   into     which          Tiscareno-Garcia                 falls—uses     the

amount of time confined in jail rather than the nature of the

offense      to     establish      conclusively                  a    lack     of     good      moral

character.         See id. § 1101(f)(7).                   It is entirely sensible for

Congress to have concluded that persons who have been convicted

of crimes serious enough to warrant at least 180 days or longer

in jail lack the good moral character required for discretionary

relief from removal.         See Romero-Ochoa v. Holder, 712 F.3d 1328,

1331 (9th Cir. 2013).            In using the length of incarceration “as

a proxy for seriousness,” Congress reasonably incorporated “the

adjudicating forum’s judgment concerning the seriousness of an



                                                  8
offense.”     Id. at 1332 (internal quotation marks and alteration

omitted).

       Tiscareno-Garcia’s absurdity argument largely ignores this

scheme and proceeds as if aliens convicted of illegal entry are

categorically       barred    from    seeking   cancellation        of    removal.

Obviously, this is not the case.             Not every non-permanent alien

who is removable entered illegally; many were lawfully admitted

but later found themselves in unlawful status after violating

the terms of a visa.           Not every alien who enters the United

States   without     inspection      faces   prosecution    under    §    1325(a);

indeed, the vast majority do not.             And, not every illegal alien

who is convicted under § 1325(a) receives the maximum sentence

of 180 days.

       We conclude that there are plausible reasons for Congress

to have excluded from discretionary relief aliens who served 6

months for violating § 1325(a).               Plausibility is all that is

required for us to reject the argument that the perfectly clear

and unambiguous statutory language produces an absurd result.

See Sigmon Coal, 226 F.3d at 308; In re: Sunterra Corp., 361

F.3d   257,   268    (4th    Cir.    2004)   (“[I]f   it   is    plausible   that

Congress    intended    the    result    compelled    by   the    Plain    Meaning

Rule, we must reject an assertion that such an application is

absurd.”).     Because this is not an exceptionally rare case, we



                                         9
cannot say that adherence to the statute’s plain text would be

absurd.

                                          III.

      In   order      to   establish      eligibility     for    cancellation        of

removal, an applicant must show that he “has been physically

present in the United States for a continuous period of not less

than 10 years,” 8 U.S.C. § 1229b(b)(1)(A), and that he “has been

a person of good moral character during such [10-year] period,”

8 U.S.C. § 1229b(b)(1)(B).           Tiscareno-Garcia argues that the 10-

year period for establishing good moral character ends “when the

alien is served a notice to appear.”              8 U.S.C. § 1229b(d)(1)(A).

Because he began and completed his period of confinement after

DHS   served    the    notice   to   appear,     Tiscareno-Garcia       urges     the

court to conclude that he did not serve his imprisonment during

the   10-year      period     and    therefore     is     not    precluded       from

establishing good moral character.               See 8 U.S.C. § 1101(f)(7)

(“No person shall be regarded as, or found to be, a person of

good moral character who, during the period for which good moral

character   is     required     to   be    established,    is,    or   was   .   .    .

confined, as a result of conviction, to a penal institution for

an aggregate period of one hundred and eighty days or more . . .

.” (emphasis added)).           We note that Tiscareno-Garcia’s position

appears to conflict with the BIA’s position on this issue.                        See

Matter of Ortega–Cabrera, 23 I. & N. Dec. 793, 798 (BIA 2005)

                                           10
(concluding that “the 10–year period during which good moral

character must be established ends with the entry of a final

administrative decision”).          As explained below, however, this

court lacks jurisdiction to address the merits of this issue

because Tiscareno-Garcia failed to raise it before the BIA and

therefore failed to exhaust his administrative remedies.

       Federal appellate courts are vested with jurisdiction to

review “final order[s] of removal,” 8 U.S.C. § 1252(a)(1), which

“are entered only after all administrative remedies have been

exhausted,” Huaman-Cornelio v. BIA, 979 F.2d 995, 999 (4th Cir.

1992); see 8 U.S.C. § 1252(d)(1) (“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 . .

.”).    And, as the government suggests, an alien who does not

raise a particular claim before the BIA fails to exhaust his

administrative remedies as to that claim.          When that occurs, the

federal courts lack jurisdiction to consider it.           See Cordova v.

Holder,   759   F.3d   332,   336   n.2   (4th   Cir.   2014);   Massis   v.

Mukasey, 549 F.3d 631, 638 (4th Cir. 2008).

       Whether Tiscareno-Garcia ever made this particular argument

to the agency is not a matter of dispute—he clearly did not.

Instead, Tiscareno-Garcia claims that he was unable to raise

this issue because, despite repeated requests, the government

did not provide his attorney with a copy of the NTA until after

                                     11
the BIA had entered a final order of removal.                                     According to

Tiscareno-Garcia, the NTA was the only document showing that the

NTA was served before he went to jail.                          Therefore, he contends

that he did not have the ability to present this challenge to

the BIA.

      We    do        not        find     Tiscareno-Garcia’s               argument       to      be

convincing.           At the initial removal hearing before an IJ on

September 28, 2011, counsel for Tiscareno-Garcia noted that he

had not seen the NTA.                    The IJ explained that the NTA charged

Tiscareno-Garcia            as    removable        because    he     had       entered    without

inspection       in    violation          of   §      1182(a)(6)(A)(i),           and     the    IJ

subsequently marked the NTA as Exhibit 1.                            Tiscareno-Garcia then

conceded     removability               but    indicated        he     intended          to     seek

cancellation of removal.                  When the government pointed out that

his   181-day         stint        in     jail       rendered        him       ineligible        for

cancellation of removal, the IJ directed counsel for Tiscareno-

Garcia to file a memorandum showing why Tiscareno-Garcia was not

ineligible under the “good moral character” provision set forth

in § 1101(f).

      As    directed,            Tiscareno-Garcia            filed         a    memorandum        on

December 21, 2011, setting forth reasons why his jail term did

not make him ineligible to apply for cancellation of removal,

but   he   did    not       argue       that   the    10-year      good        moral    character

period ended with the issuance of the NTA and therefore did not

                                                 12
include    the   181   days         of   confinement.              At    the    very      latest,

Tiscareno-Garcia and his lawyer received a copy of the NTA on

September 28, 2011, when it was entered as an exhibit during the

initial hearing.        Clearly, Tiscareno-Garcia could have raised

this claim before both the IJ and the BIA; the government’s

failure    to    provide    a       copy       of    the    NTA     prior      to    that       time

presented   no    impediment         to    his       ability      to    exhaust       his   claim

administratively.          Accordingly, we lack jurisdiction over this

claim and, technically speaking, must dismiss it.

                                               IV.

     Finally, Tiscareno-Garcia includes on appeal a claim that

the combined effect of the statutory provisions at issue here—

sections 1229b(b)(1), 1101(f)(7) and 1325(a)—deprived him of due

process.    This challenge is without merit, and we reject it.

     “To    succeed    on       a    due       process       claim      in     an    asylum      or

deportation      proceeding,         the   alien       must       establish         two   closely

linked elements: (1) that a defect in the proceeding rendered it

fundamentally      unfair     and        (2)    that       the    defect     prejudiced         the

outcome of the case.”               Anim v. Mukasey, 535 F.3d 243, 256 (4th

Cir. 2008).       Tiscareno-Garcia posits that the federal district

court which accepted his guilty plea and imposed the 180-day

sentence    actually    exercised              “de    jure       jurisdiction”        over      his

eligibility for cancellation of removal that is reserved for the

immigration      courts.        He       reasons       that       he    therefore         did   not

                                               13
receive a meaningful opportunity during removal proceedings to

establish his eligibility for discretionary relief.                       The die was

cast, in other words, by the time his case reached the IJ.

       Tiscareno-Garcia       does     not   actually      claim    any    procedural

defect occurring in the removal proceeding itself.                          Actually,

this       is    simply   another      way    to     challenge      the     statute’s

eligibility bar for those who are confined for 180 days as a

result      of   an    illegal-entry     conviction.         The    district    court

obviously        did    not   exercise       any    sort     of    “jurisdictional”

authority over the administrative removal process.                    What happens

in   criminal      proceedings,      whether       federal   or    state,    commonly

echoes in immigration proceedings. *

                                         V.

       For the foregoing reasons, we deny in part and dismiss in

part Tiscareno-Garcia’s petition for review.



                                         PETITION FOR REVIEW DENIED IN PART
                                                      AND DISMISSED IN PART




       *
       Likewise, to the extent that Tiscareno-Garcia raises a due
process challenge based on the DHS’s discretion to both charge
him with illegal entry under § 1325(a) and then place him in
removal proceedings, we reject his claim as wholly without
merit.


                                         14
