NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________

No. 11-4448 ____________

MILVIA MARITZA CUELLAR DE MARROQUIN,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES, Respondent

__________________________________

On a Petition For Review of an Order of the Board of Immigration Appeals

(Agency No. A073-127-873) Immigration Judge: Susan G. Roy

__________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) October 10, 2012

Before: AMBRO, ALDISERT and NYGAARD, Circuit

Judges

(Opinion filed: October 11, 2012) ____________

OPINION

____________

PER CURIAM

Milvia Maritza Cuellar de Marroquin (“Cuellar”) petitions for review of the Board

of Immigration Appeals’ final order of removal. For the reasons that follow, we will

deny the petition for review.

2

Cuellar, a native and citizen of Guatemala, entered the United States without

inspection on or about May 4, 1994 near Douglas, Arizona. She was placed in

deportation proceedings pursuant to an Order To Show Cause, which charged that she

was deportable for her unlawful entry. Cuellar submitted an application for asylum and

withholding of removal, but, on May 8, 1995, she withdrew the application. The

Immigration Judge then granted her voluntary departure until May 8, 1996, and ordered

her deportation to Guatemala in the alternative. Cuellar waived an appeal of the

Immigration Judge’s May 8, 1995 decision.

Cuellar did not depart the United States by May 8, 1996, and, on May 9, 1996, a

Warrant of Removal/Deportation was issued against her. Meanwhile, Cuellar’s husband,

Luis Marroquin, a lawful permanent resident, filed a visa petition on her behalf, which

was approved on October 18, 1995. On October 1, 1996, daughter Kimberly was born to

the couple in New Jersey.

Over four years later, on February 16, 2001, Cuellar filed an Application for

Waiver of Grounds of Excludability (Form I-601) and an Application for Permission to

Reapply for Admission After Deportation or Removal (Form I-212), 8 U.S.C. §

1182(a)(9)(A). Cuellar gave birth to the couple’s daughter Jamie on September 7, 2001.

On August 10, 2002, District Director Andrea J. Quarantillo denied the applications for

waiver and permission to reapply for admission, concluding that Cuellar’s disregard of

U.S. immigration laws outweighed the hardship to her family that would result from her

deportation. Cuellar appealed, but on January 30, 2008, the Administrative Appeals

Office (“AAO”) dismissed her appeal. The AAO, noting that Cuellar was inadmissible

3

under 8 U.S.C. § 1182(a)(9)(A)(ii)(I) (2010) (alien ordered removed and who seeks

admission within 10 years of the date of such alien’s removal is inadmissible), found that

her family ties to a lawful permanent resident and United States citizens (her husband and

children), the general hardship they would experience if she was deported, the fact that

she had no criminal record, and her approved visa petition, all weighed in favor of

granting her relief from deportation. But the unfavorable factors – her initial entry

without inspection, her failure to abide by an order of deportation, and periods of

unauthorized presence in the United States – could not be condoned, and a favorable

exercise of discretion was not warranted in her case.

On August 27, 2009, Cuellar turned to the Immigration Court and filed a motion to

reopen deportation proceedings. A new Immigration Judge was assigned to her case.

Cuellar asserted that exceptional circumstances beyond her control had prevented her

from complying with the voluntary departure order in 1996, and that she now was prima

facie eligible to adjust her status. Cuellar explained in her motion to reopen that she did

not depart the United States by May 8, 1996 because she was pregnant and receiving

quality prenatal care through her husband’s health insurance plan. She was concerned

that she would not be able to get adequate prenatal care in Guatemala, since there is no

free access to health care there. Cuellar provided documentation with respect to

Guatemala’s substandard health care system. The Department of Homeland Security did

not respond to the motion to reopen.

On November 6, 2009, the Immigration Judge denied the motion to reopen as

untimely filed under 8 C.F.R. § 1003.23(b)(1) (providing that motion to reopen be filed

4

within 90 days of entry of final order of removal or by September 30, 1996). No joint

motion had been filed and Cuellar did not raise a claim for asylum or withholding of

removal, see id. at § 1003.23(b)(4)(i) and (iv), so no exceptions to the timeliness

requirement applied to her case. The IJ rejected Cuellar’s exceptional circumstances

argument. Noting that only exceptional circumstances beyond the control of an alien

would excuse the failure to depart voluntarily, 8 U.S.C. § 1252b(e)(2)(A) (repealed

1996); that an alien who had remained in the United States beyond the voluntary

departure period could not apply for adjustment of status for a period of five years absent

a showing of exceptional circumstances for failing to depart; and that the term

“exceptional circumstances” includes serious illness of the alien or death of an immediate

relative of the alien but does not include less compelling circumstances beyond the

control of the alien, see id. at § 1252b(f)(2), the IJ reasoned that Cuellar had not shown

compelling circumstances beyond her control. The IJ noted that Cuellar did not allege

that she suffered from any illness or complications during her pregnancy, she did not

allege that her child suffered from any prenatal complications, and she did not claim that

she had experienced any prenatal or postnatal complications following the birth of her

first child in Guatemala.1

1 The couple’s first child was born in Guatemala on April 9, 1993 and still resides there. The couple send money to the person who is raising this child in Guatemala.

The IJ also concluded that Cuellar was not eligible for

adjustment of status because her application for readmission to the United States had

been denied by the District Director.

5

Cuellar appealed to the Board of Immigration Appeals, contending that her

deportation proceedings should be reopened in order for her to pursue adjustment of

status, because her failure to depart by May 8, 1996 was due to exceptional circumstances

beyond her control, that is her pregnancy and need for prenatal care. Moreover, since

more than five years had elapsed since the departure order, she was no longer disqualified

from applying for adjustment of status, A.R. 15. In essence, Cuellar argued that,

although she was advised that she would face a disqualification for a period of years if

she did not depart, she was also advised that there would be no consequences if that

failure was due to exceptional circumstances, see id.

On November 14, 2011, the Board dismissed the appeal. The Board concluded

that the record established that the original Immigration Judge’s voluntary departure

order provided Cuellar with the correct written warnings concerning the five-year

adjustment of status disqualification, citing page 2 of the order. The Board next

concluded that Cuellar’s motion to reopen was not timely filed because the motion was

due no later than September 30, 1996, but it was not filed until August 27, 2009.

Moreover, no regulatory exceptions to the filing deadline applied, and a motion to reopen

in order to apply for adjustment of status does not fall within any of the statutory or

regulatory exceptions to the filing deadline. Because Cuellar’s motion to reopen was

untimely filed, the Board found it unnecessary to address the IJ’s additional conclusions

that Cuellar was barred in any event from adjustment of status under 8 U.S.C. §

1182(a)(9), and that her pregnancy and desire for prenatal care did not establish

exceptional circumstances for her failure to depart the United States by May 8, 1996.

at 17.

6

The Board also declined to reopen proceedings sua sponte, see Matter of J-J-

Cuellar petitions for review of the Board’s decision. We have jurisdiction under 8

U.S.C. § 1252(a)(1) and (b)(1) to review the Board’s November 14, 2011 decision. In

her brief, Cuellar argues that her proceedings should be reopened “on the grounds that the

adverse consequences” of failing to depart within the voluntary departure period “attach

only if the Immigration Judge provides certain oral warnings, where the record

establishes that only written warnings were provided….”

, 21 I. & N.

Dec. 976 (BIA 1997), noting that Cuellar had obtained “additional equities” as a result of

overstaying the voluntary departure period. A.R. 4.

See Petitioner’s Brief, at 2.

Cuellar argued that, pursuant to former 8 U.S.C. § 1252b(e)(2), the issuance of written

warnings alone does not disqualify an alien from receiving immigration benefits, see id.

at 12, 15, and she cited Barker v. Ashcroft, 382 F.3d 313, 316 (3d Cir. 2003), where, we

note, the alien argued that a general warning about losing the right to apply for certain

immigration benefits and a general statement about what constitutes exceptional

circumstances, is insufficient. See

We will deny the petition for review. An alien must exhaust all administrative

remedies available to her as a prerequisite to raising a claim before this Court.

Petitioner’s Brief, at 15-16. The Department of

Homeland Security argues that we lack jurisdiction over this argument because Cuellar

failed to exhaust her administrative remedies with respect to it.

See 8

U.S.C. § 1252(d)(1); Yan Lan Wu v. Ashcroft, 393 F.3d 418, 422 (3d Cir. 2005). Failure

to present an issue to the agency constitutes a failure to exhaust, thus depriving us of

jurisdiction to consider it. See Lin v. Att’y Gen. of the U.S., 543 F.3d 114, 119-20 (3d

7

Cir. 2008). Exhaustion of administrative remedies is satisfied so long as the alien makes

some effort to place the agency on notice of a straightforward issue, see Joseph v. Att’y

Gen. of the U.S., 465 F.3d 123, 126 (3d Cir. 2006), and we have commented that our

“exhaustion policy” is “liberal,” id., but Cuellar concedes that she did not present the

argument to the agency that she did not receive the warning concerning the five-year

adjustment of status disqualification orally. See

In

Petitioner’s Brief, at 12, 15.

Barker, we held that the alien failed to raise her issue that she did not receive

adequate or sufficient oral notice of the consequences of failing to depart voluntarily, and

that her failure to raise the issue before the agency barred our consideration of this issue.

382 F.3d at 317. Barker applies here and cannot be distinguished, because Cuellar

argued before the Board only that her pregnancy and desire for prenatal care was a

compelling circumstance beyond her control. She raised no issue before the agency that

the warnings she received were insufficient under former section 1252b(e)(2) because

they were not oral. Accordingly, her failure to raise the issue before the agency bars our

consideration of this issue. Barker, 382 F.3d at 317.2

In any event, the failure to give oral warnings regarding the adjustment of status

disqualification would not exempt a subsequent motion to reopen from the timeliness

requirement,

see 2 Having failed to squarely present the oral warnings issue to the Board, Cuellar gave the Board no opportunity or reason to point out that the Immigration Judge’s 1995 order includes not only written warnings about the five-year adjustment of status disqualification, but also this statement, just above the Immigration Judge’s signature: “This written notice was provided to the alien in English and in Spanish. Oral notice of the contents of this notice was given to the alien in his/her native language, or in a language he/she understands.” A.R. 121.

8 C.F.R. § 1003.23(b)(4)(i)-(iv), just as the Board held. Cuellar argued

8

before the Board that the time limitation for motions to reopen should not apply to her

because she showed exceptional circumstances for failing to depart during the voluntary

departure period. We review the Board’s denial of a motion to reopen for abuse of

discretion. Immigration & Naturalization Serv. v. Doherty, 502 U.S. 314, 323 (1992).

Under this standard, we will reverse the Board’s decision only if it is arbitrary, irrational,

or contrary to law. Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002). An abuse of

discretion is found only “in those circumstances where the Board’s decision provides no

rational explanation, inexplicably departs from established policies, is devoid of any

reasoning, or contains only summary or conclusory statements; that is to say, where the

Board has acted in an arbitrary or capricious manner.” Shardar v. Att’y Gen. of the U.S.,

503 F.3d 308, 316 (3d Cir. 2007)(quoting Zhao v. Dep’t of Justice

The Board did not abuse its discretion in concluding that Cuellar’s motion to

reopen was untimely filed and that no statutory or regulatory exceptions applied to

excuse the untimeliness. A motion to reopen must be filed no later than 90 days after the

date on which the final administrative decision was rendered in the proceeding sought to

be reopened, or on or before September 30, 1996, whichever is later. 8 C.F.R.

1003.23(b)(1).

, 265 F.3d 83, 93 (2d

Cir. 2001)).

See also 8 U.S.C. § 1229a(c)(7)(C)(i). Cuellar thus had until September

30, 1996 in which to file a timely motion to reopen and raise her argument that her

deportation proceedings should be reopened in order for her to pursue adjustment of

status, because her failure to depart was due to compelling circumstances beyond her

9

control, that is her pregnancy and need for prenatal care. She plainly failed to file her

motion to reopen by the deadline.

An untimely motion to reopen may be considered in certain limited circumstances:

(1) where the alien seeks to apply or reapply for asylum or withholding of removal based

on changed country conditions; (2) where the alien seeks recission of an in absentia order

of removal; or (3) where the motion has been jointly filed and agreed upon by all parties.

8 C.F.R. § 1003.23(b)(4)(i)-(iv). See also 8 U.S.C. §§1229a(c)(7)(C)(ii)-(iii). The Board

properly concluded that none of the statutory and regulatory exemptions applies in

Cuellar’s case,3 and properly pointed out that eligibility for adjustment of status is not

among the statutory or regulatory exemptions. See Matter of Yauri, 25 I. & N. Dec. 103,

105 (BIA 2009). Moreover, although the Board has the authority to reopen proceedings

sua sponte, see 8 C.F.R. § 1003.23(a), its decision not to exercise its discretion, where, as

here, it did not rely on an incorrect legal premise, is unreviewable. See Calle-Vujiles v.

Ashcroft, 320 F.3d 472, 475 (3d Cir. 2003). See also Pllumi v. Att’y Gen. of the U.S.

For the foregoing reasons, we will deny the petition for review.

,

642 F.3d 155, 160 (3d Cir. 2011).

3 The statute also provides special rules for battered spouses, children and parents, see id. at § 1229a(c)(7)(C)(iv).

Ir&oPparsoaal privacy

U.S. Department of Homeland Security 20 Massachusetts Avenue, N.W., Rrn. 3000 Washington, DC 20529

U.S. Citizenship and Immigration

FILE: Office: NEWARK, NJ Date: JAN 3 0 ~ U 0 8

IN RE: Applicant:

APPLICATION: Application for Permission to Reapply for Admission into the United States after Deportation or Removal under Section 212(a)(9)(A) of the Immigration and Nationality Act, 8 U. S.C. 5 1 1 82(a)(9)(A)

ON BEHALF OF APPLICANT:

INSTRUCTIONS:

This is the decision of the Administrative Appeals Office in your case. All documents have been returned to the office that originally decided your case. Any further inquiry must be made to that office.

Robert P. Wiemann, Chief Administrative Appeals Office

DISCUSSION: The application for permission to reapply for admission after removal was denied by the District Director, Newark, New Jersey, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.

The applicant is a native and citizen of Guatemala who married a lawful permanent resident of the United States, on May 23, 1992, in Guatemala. On May 4, 1994, the applicant entered the United States without inspection. On the same day, an Order to Show Cause (OSC) was issued against the applicant. On September 19, 1994, the applicant's husband filed a Petition for Alien Relative (Form 1-130) on behalf of the applicant. On September 27, 1994, the applicant filed a Request for Asylum in the United States (Form 1-589). On May 8, 1995, the applicant withdrew her Form 1-589. On the same day, an immigration judge granted the applicant voluntary departure. On October 18, 1995, the applicant's Form 1-130 was approved. The applicant failed to depart the United States as ordered. On May 9, 1996, a Warrant of Removal/Deportation (Form 1-205) was issued. On October 1, 1996, the appljcant's daughter, - was born in New Jersey. On February 16, 2001, the applicant filed an Application for Waiver of Grounds of Excludability (Form 1-60 1) and an Application for Permission to Reappl w dmission After Deportation or Removal (Form 1-2 12). On September 7,200 1, the applicant's daughter, was born in New Jersey. The applicant is inadmissible to the United States under section 212(a)(9)(A)(ii)(I) of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 1 182(a)(9)(A)(ii)(I). She now seeks permission to reapply for admission into the United States under section 212(a)(9)(A)(iii) of the Act, 8 U.S.C. 9 1182(a)(9)(A)(iii), in order to reside with her lawful permanent resident spouse and two United States citizen children.

The Director determined that the unfavorable factors in the applicant's case outweighed the favorable factors, t+

and denied the applicant's Form 1-2 12 accordingly. Director 's Decision, dated August 10, 2002.

Section 2 12(a)(9). Aliens previously removed.-

(A) Certain alien previously removed.-

(ii) Other aliens.- Any alien not described in clause (i) who-

(I) has been ordered removed under section 240 or any other provision of law, or

(11) departed the United States while an order of removal was outstanding, and seeks admission within 10 years of the date of such alien's departure or removal (or within 20 years of such date in the case of a second or subsequent removal or at any time in the case of an aliens convicted of an aggravated felony) is inadmissible.

(iii) Exception.- Clauses (i) and (ii) shall not apply to an alien seeking admission within a period if, prior to the date of the aliens' reembarkation at a place outside the United States or attempt to be admitted from foreign continuous territory, the Attorney

General [now, Secretary, Department of Homeland Security] has consented to the aliens' reapplying for admission.

A review of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) amendments to the Act and prior statutes and case law regarding permission to reapply for admission reflects that Congress has, (1) increased the bar to admissibility and the waiting period from 5 to 10 years in most instances and to 20 years in others, (2) has added a bar to admissibility for aliens who are unlawfully present in the United States, and (3) has imposed a permanent bar to admission for aliens who have been ordered removed and who subsequently enter or attempt to enter the United States without being lawfully admitted. It is concluded that Congress has placed a high priority on deterring aliens from overstaying their authorized period of stay and from being present in the United States without lawful admission or parole.

On appeal, the applicant, through counsel, contends that the Director "improperly denied [the Form I- 2123.. .[The Director] wrongly found that no extreme hardship would inure to the applicant's United States citizen children in the event that she were to depart from the country. [The Director] also placed too much weight on a prior withdrawal of an asylum application." Form I-290B, filed September 12, 2002. The AAO notes the neither the applicant nor her husband submitted a statement regarding the hardship they would suffer if the applicant were removed to Guatemala. Additionally, there is no evidence that the applicant provides any assistance in raising the children or contributes financially to the household. The AAO notes that unlike sections 212(g), (h), and (i) of the Act (which relate to waivers of inadmissibility for prospective immigrants), section 2 12(a)(9)(A)(iii) of the Act does not specify hardship threshold requirements which must be met. An applicant for permission to reapply for admission into the United States after deportation or removal need not establish that a particular level of hardship would result to a qualifying family member if the application were denied. The AAO will consider the hardship to the applicant's father and children, but it will be just one of the determining factors.

The record of proceedings reveals that on May 4, 1994, the applicant entered the United States without inspection. On May 8, 1995, an immigration judge granted the applicant voluntary departure. The applicant failed to depart the United States as ordered. On May 9, 1996, a Warrant of Removal/Deportation was issued. Based on the applicant's previous order of removal, the applicant is clearly inadmissible under section 2 12(a)(9)(A)(ii)(I) of the Act.

In Matter of Tin, 14 I&N Dec. 371 (Reg. Comm. 1973)' the Regional Commissioner listed the following factors to be considered in the adjudication of a Form 1-212 Application for Permission to Reapply After Deportation:

The basis for deportation; recency of deportation; length of residence in the United States; applicant's moral character; his respect for law and order; evidence of reformation and rehabilitation; family responsibilities; any inadmissibility under other sections of law; hardship involved to himself and others; and the need for his services in the United States.

In Tin, the Regional Commissioner noted that the applicant had gained an equity (job experience) while being unlawfully present in the U.S. The Regional Commissioner then stated that the alien had obtained an

:\ Page 4

advantage over aliens seeking visa issuance abroad or who abide by the terms of their admission while in this country, and he concluded that approval of an application for permission to reapply for admission would condone the alien's acts and could encourage others to enter the United States to work unlawfully. Id.

The favorable factors in this matter are the applicant's family ties to a lawful permanent resident and United States citizens, her husband and children, general hardship they may experience, no criminal record, and the approval of a petition for alien relative.

The AAO finds that the unfavorable factors in this case include the applicant's initial entry without inspection, her failure to abide by an order of deportation, and periods of unauthorized presence.

The applicant's actions in this matter cannot be condoned. The applicant has not established by supporting evidence that the favorable factors outweigh the unfavorable ones.

Section 291 of the Act, 8 U.S.C. 5 1361, provides that the burden of proof is upon the applicant to establish that she is eligible for the benefit sought. After a careful review of the record, it is concluded that the applicant has failed to establish that a favorable exercise of the Secretary's discretion is warranted. Accordingly, the appeal will be dismissed.

ORDER: The appeal is dismissed.