                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    May 5, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                              FOR THE TENTH CIRCUIT


    RODOLFO RAFAEL
    CONDERMARIN-CACERES,

                Petitioner,
                                                        No. 10-9561
    v.                                              (Petition for Review)

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

                Respondent.


                              ORDER AND JUDGMENT *


Before O’BRIEN, ANDERSON, and HOLMES, Circuit Judges.



         Rodolfo Rafael Condermarin-Caceres petitions for our review of a Bureau

of Immigration Appeals (BIA) decision dismissing his appeal from the denial of a

motion to reopen his removal proceedings. Because petitioner did not exhaust the

issues he now raises, we dismiss the petition for review.



*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
      Petitioner failed to appear for his removal hearing before the Immigration

Judge (IJ), thereby abandoning any applications for relief from removal. Admin.

R. at 61. Upon finding the requisite written notice of the hearing had been given

and the charge of removability established by the evidence, the IJ ordered

petitioner removed in absentia. Id. Three years later, after he had married a U.S.

citizen who filed a Petition for Alien Relative on his behalf, petitioner moved to

reopen. As relevant here, an in absentia removal order may be rescinded through

a motion to reopen on two grounds: “the alien demonstrates that the failure to

appear was because of exceptional circumstances,” provided the motion to reopen

is filed within 180 days of the removal order, 8 U.S.C. § 1229a(b)(5)(C)(i); or

“the alien demonstrates that the alien did not receive notice [of the removal

hearing] in accordance with paragraph (1) or (2) of section 1229(a),” 1 in which

case the motion may be filed at any time, id. § 1229a(b)(5)(C)(ii).

      Petitioner’s motion to reopen did not raise any issue about notice, relying

instead (despite temporal problems) on an exceptional-circumstances argument.

In denying the motion, the IJ specifically noted “entry of the in absentia order

was appropriate because [petitioner] was properly notified of the proceedings and

because [he] does not allege he did not receive notice.” Admin. R. at 33

(emphasis added). The IJ rejected the exceptional-circumstances argument as


1
      It is sufficient if written notice is sent to the last known address provided
by the alien. 8 U.S.C. §§ 1229a(b)(5)(A), 1229(a)(1)(F).

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both untimely and meritless (petitioner’s subsequent marriage to a U.S. citizen “is

not an exceptional circumstance which caused his failure to appear”). Id. On

appeal to the BIA, petitioner again raised no issue regarding notice. The BIA

“agree[d] with the [IJ’s] denial of [petitioner’s] motion to reopen,” id. at 3, and

dismissed the appeal, id. at 4.

      Although variously framed in terms of improper factfinding, erroneous

application of evidentiary standards, and even constitutional error, all of the

objections petitioner now raises to the denial of his motion to reopen rest on the

basic premise that he did not receive notice of his removal hearing and the IJ and

BIA erred in failing to so find and grant his motion to reopen. But his motion to

reopen and brief to the BIA never challenged receipt of notice. Citing this

omission, the government insists we should dismiss this petition for review for

failure to exhaust administrative remedies, under the rule of Rivera-Zurita v. INS,

946 F.2d 118, 120 n.2 (10th Cir. 1991) (“The failure to raise an issue on appeal to

the [BIA] constitutes failure to exhaust administrative remedies with respect to

that question and deprives the Court of Appeals of jurisdiction to hear the

matter.”). See also Torres de la Cruz v. Maurer, 483 F.3d 1013, 1017 (10th Cir.

2007); Vatulev v. Ashcroft, 354 F.3d 1207, 1211 (10th Cir. 2003). We agree.

      The government notes this court has recognized a significant attenuating

gloss on the exhaustion requirement, but argues it does not apply on the facts




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here. 2 In Sidabutar v. Gonzales, 503 F.3d 1116, 1122 (10th Cir. 2007), we held

issues not raised by an alien may still be deemed exhausted if they were decided

sua sponte in administrative proceedings. But “Sidubutar’s ‘sua sponte

exhaustion’ rule . . . is a narrow one.” Garcia-Carbajal v. Holder, 625 F.3d

1233, 1235 (10th Cir. 2010). For it to apply, “the BIA must: (1) clearly identify

a claim, issue, or argument not presented by the petitioner; (2) exercise its

discretion to entertain the matter; and (3) explicitly decide that matter in a full

explanatory opinion or substantive discussion.” Id.

      Here, the BIA noted “the record reflects . . . the notice of hearing was

mailed to [petitioner’s] last known address,” Admin. R. at 3, but that does not

identify as an issue, much less explicitly decide, whether he actually received the

notice. 3 The BIA got closer when it found “[petitioner] has not demonstrated a

lack of notice.” Id. But, given the IJ’s express acknowledgment that petitioner

was not disclaiming receipt of the notice, and the absence of any argument on that

point in his brief to the BIA, there is no basis for construing the BIA’s language

as anything more than it actually was, merely a recognition that petitioner had not

demonstrated–indeed, had made no attempt to demonstrate–a lack of notice (and

2
       Petitioner, who failed to anticipate the government’s exhaustion objection
in his opening brief and chose not to file a reply brief, has left the government’s
discussion of this critical point effectively unopposed.
3
      We note petitioner also objects, in passing, that the address used for the
notice of hearing was deficient, in that it lacked an apartment number. This point
was likewise never made to or explicitly resolved by the BIA.

                                          -4-
it would have been his burden to do so, Thongphilack v. Gonzales, 506 F.3d 1207,

1209 (10th Cir. 2007)). That falls well short of the BIA clearly identifying and

then exercising its discretion to explicitly decide the distinct question whether the

record affirmatively established petitioner did in fact receive the notice (a finding

that did not need to be made precisely because he had not disputed the point).

      “Whenever an agency states a conclusion . . .[,] it impliedly rejects any

number of unmade potential arguments. But that doesn’t mean the agency

noticed those arguments, let alone considered and ruled on them.” Id. at 1239.

All of the strict requirements for sua sponte exhaustion must be clearly satisfied

in order to accord the agency the deference to which it is entitled. Id. Thus,

sua sponte exhaustion “will be the rare exception, not the rule.” Id. at 1238. This

rare exception does not apply here.

      We lack jurisdiction to consider petitioner’s overarching contention that he

did not receive notice of the removal hearing. As all of his assignments of error

are inextricably based on that contention, we must dismiss the petition for review.

      The petition for review is DISMISSED.


                                                     Entered for the Court



                                                     Terrence L. O’Brien
                                                     Circuit Judge




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