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Garcia-Carbajal v. Holder

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Before LUCERO and GORSUCH, Circuit Judges, and ARGUELLO*fn1, District Judge.

Alonso Garcia-Carbajal seeks to challenge a Board of Immigration Appeals (“BIA”) order on grounds he never argued to the Board. Ordinarily, this a petitioner cannot do. Ordinarily, a petitioner must exhaust all administrative processes available to hear his arguments before he may seek to bring those arguments to court. But Mr. Garcia-Carbajal submits his case isn’t an ordinary one. Under Sidabutar v. Gonzales, 503 F.3d 1116 (10th Cir. 2007), he says, when the BIA sua sponte considers arguments not advanced by the petitioner, the Board effectively exhausts the available administrative remedies for the petitioner, so that the petitioner may later pursue those arguments in court. Sidabutar’s “sua sponte exhaustion” rule, however, is a narrow one. To qualify for it, the BIA must: (1) clearly identify a claim, issue, or argument not presented by the petitioner; (2) exercise its discretion to entertain that matter; and (3) explicitly decide that matter in a full explanatory opinion or substantive discussion. Only then may a petitioner take an argument to court that he never pursued before the BIA. Because none of these three circumstances exists here, we cannot say Mr. Garcia-Carbajal exhausted his administrative remedies and so dismiss his petition for review.

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