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

                           FOR THE TENTH CIRCUIT                        April 23, 2015

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
LUIS MANUEL MONTIEL-HERNANDEZ,

             Petitioner,

v.                                                           No. 14-9523
                                                         (Petition for Review)
ERIC H. HOLDER, JR., United States
Attorney General,

             Respondent.


                            ORDER AND JUDGMENT*


Before GORSUCH, O’BRIEN, and PHILLIPS, Circuit Judges.


      Luis Manuel Montiel-Hernandez, a native and citizen of Mexico, was charged

as a removable alien unlawfully present in the United States. See 8 U.S.C.

§ 1182(a)(6)(A)(i). He conceded the charge, but at a hearing before an immigration

judge (IJ), he requested a continuance to see if the Department of Homeland Security

(DHS) would favorably exercise its prosecutorial discretion to terminate his removal


*
      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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
proceedings. The IJ granted the continuance, but when the parties reconvened, DHS

indicated it had decided not to terminate the case. Montiel-Hernandez declined to

seek any relief from removal or voluntary departure, and thus the IJ summarily

ordered him removed to Mexico.

      He appealed to the Board of Immigration Appeals (BIA), raising two

arguments. He first claimed the IJ refused to exercise jurisdiction over DHS’s

decision not to terminate his case, thereby violating his due process rights. The BIA

rejected this claim, observing that Montiel-Hernandez did not seek to

administratively terminate his case or have the IJ review DHS’s refusal to do so; he

simply requested a continuance to wait for DHS’s decision. See Admin. R. at 76-77.

The BIA emphasized, however, that the IJ lacked jurisdiction to review DHS’s

decision not to terminate his removal proceedings, which was solely within the

prosecutorial discretion of DHS. He also claimed he was forced to waive voluntary

departure, but the BIA rejected that argument as well, because, as the record clearly

indicated, he did not seek voluntary departure. The BIA dismissed the appeal.

      Montiel-Hernandez insists his due process rights were violated because DHS

refused to terminate his case and the agency refused to review that decision. He also

claims to have been forced to waive voluntary departure in order to preserve his

appeal rights. That is because, under the governing regulation, he was required to

abandon all appellate issues as a condition of seeking voluntary departure. See

Pet’r Br. at 24 (discussing 8 C.F.R. § 1240.26(b)(1)(i)).


                                         -2-
      We will not consider Montiel-Hernandez’s voluntary departure argument

because he did not raise it before the IJ. See Torres de la Cruz v. Maurer, 483 F.3d

1013, 1022-23 (10th Cir. 2007) (upholding BIA’s waiver rule where alien failed to

raise argument before the IJ). Indeed, as the BIA observed, he did not even request

voluntary departure. In fact, he affirmatively declined it when the IJ asked if “he

[was] interested in voluntary departure,” stating, “No, Your Honor. Not at this time.”

Admin. R. at 81.1 Moreover, he never claimed he was being forced to choose

between his appeal rights and voluntary departure, nor did he cite any regulation

requiring that he waive his appellate issues. Instead, he simply elected to forgo

voluntary departure, just as he elected not to seek relief from removal, relying instead

on DHS’s prosecutorial discretion to close his case. As a consequence, the BIA did

not rule on the voluntary departure argument. Nor will we. See Torres de la Cruz,

483 F.3d at 1023.

      He also contends the agency should have exercised jurisdiction over DHS’s

decision not to terminate his case. But he never asked the IJ to review that decision.

It would have been futile in any event. The BIA has here correctly emphasized “the

decision to exercise prosecutorial discretion remains within the sole discretion of the

DHS, and therefore, the [IJ] does not have jurisdiction to review the DHS’s decisions

on this matter.” Admin. R. at 3. We review this legal conclusion de novo, Dallakoti
1
      Montiel-Hernandez had conditionally requested voluntary departure at his
previous hearing if DHS denied prosecutorial discretion, see Admin. R. at 76, but he
changed course at his final removal hearing.


                                         -3-
v. Holder, 619 F.3d 1264, 1267 (10th Cir. 2010), and agree the agency lacked

jurisdiction to review DHS’s decision, see Cortez-Felipe v. INS, 245 F.3d 1054, 1057

(9th Cir. 2001) (holding that IJ and BIA lack jurisdiction to review discretionary

decisions regarding when and whether to initiate removal proceedings (citing

Barahona-Gomez v. Reno, 236 F.3d 1115, 1119-20 (9th Cir. 2001))). Indeed, “[t]he

immigration judge is not empowered to review the wisdom of [DHS] in instituting

the proceedings.” Lopez-Telles v. INS, 564 F.2d 1302, 1304 (9th Cir. 1977)

(per curiam); see also Matter of Quintero, 18 I. & N. Dec. 348, 350 (BIA 1982)

(“Once deportation proceedings have been initiated by the District Director, the

immigration judge may not review the wisdom of the District Director’s action, but

must execute his duty to determine whether the deportation charge is sustained by the

requisite evidence in an expeditious manner.”). This is because DHS, as the federal

agency charged with enforcing the immigration laws, has the sole authority to

exercise prosecutorial discretion in immigration cases. See 8 U.S.C. § 1103(a).

Because the IJ and BIA had no authority to review DHS’s discretionary prosecutorial

decision to keep this case in removal proceedings, the BIA correctly rejected this

argument.2


2
       To the extent Montiel-Hernandez contends DHS abused its discretion in
declining to terminate his removal proceedings, we lack jurisdiction to review this
claim. See 8 U.S.C. § 1252(g) (“[N]o court shall have jurisdiction to hear any cause
or claim by or on behalf of any alien arising from the decision or action by the
Attorney General to commence proceedings, adjudicate cases, or execute removal
orders against any alien under this chapter.”); see also Reno v. American-Arab
                                                                            (continued)
                                          -4-
      The petition for review is denied.


                                                 Entered for the Court



                                                 Terrence L. O’Brien
                                                 Circuit Judge




Anti-Discrimination Comm., 525 U.S. 471, 485 n.9 (1999) (“Section 1252(g) was
directed against a particular evil: attempts to impose judicial constraints upon
prosecutorial discretion.”); Luevano v. Holder, 660 F.3d 1207, 1210 n.2 (10th Cir.
2011) (noting that court lacked jurisdiction to review discretionary decision to bring
removal proceedings against alien). Although § 1252(g) refers to the Attorney
General, it has been applied to the Secretary of DHS. See Ali v. Mukasey, 524 F.3d
145, 150 & n.5 (2d Cir. 2008).


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