Sola v. Holder

When the Immigration Judge or Board of Immigration Appeals could have addressed a claim, the claim does not fall within the exhaustion exception for constitutional challenges to immigration laws and procedures, and the Ninth Circuit will dismiss the claim for lack of jurisdiction.

Rosaura Sola’s husband “affirmatively applied for asylum under…the Nicaraguan Adjustment and Central American Relief Act (NACARA),” and Sola did the same based on her “status as a derivative beneficiary” of her husband. Since Sola’s ability to apply for relief under NACARA derived from her husband, she could only be granted asylum under NACARA if her husband was granted asylum under NACARA, which he was not. Sola was then placed in removal proceedings while her husband was granted temporary protective status. The Immigration Judge (“IJ”) found Sola removable, which the Board of Immigration Appeals (“BIA”) upheld. On appeal, Sola claimed that “she was denied due process” because she had been placed “in removal proceedings without her husband.” Without him, she could not assert “claims to derivative relief” based on his NACARA and asylum claims. If Sola and her husband had been place in removal proceedings together, her husband would have re-asserted these claims and Sola could have pursued derivative claims. The Ninth Circuit noted that under 8 U.S.C. § 1252(d)(1), it could not review a removal decision until “the alien has exhausted all administrative remedies available,” and “a petitioner’s failure to raise an issue before the BIA generally constitutes a failure to exhaust.” The panel noted that there was “an exception to the exhaustion requirement…[for] constitutional challenges to the Immigration and Naturalization Act and [Immigration and Naturalization Service] procedures.” However, “[c]hallenges to procedural errors correctable by the administrative tribunal, must be exhausted before we undertake review.” The panel concluded that if Sola had raised her claim before the IJ or the BIA, it could have been corrected. Therefore, the panel held that the claim had not been exhausted, and it did not have jurisdiction over the claim. PETITION DISMISSED.