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Calix v. Lynch

United States Court of Appeals, Fifth Circuit

April 28, 2015

RONY ALEXANDER PAZ CALIX, Petitioner
v.
LORETTA LYNCH, U.S. ATTORNEY GENERAL, Respondent

Page 1001

Petition for Review of an Order of the Board of Immigration Appeals.

For Rony Alexander Paz Calix, Petitioner: Alex Macias Torres, Torres Law Firm, Bellaire, TX; Brian Keith Bates, Esq., Houston, TX.

For Loretta Lynch, U.S. Attorney General, Respondent: Lynda A. Do, Melissa Lynn Neiman-Kelting, Senior Litigation Counsel, Tangerlia Cox, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC.

Before REAVLEY, SMITH, and SOUTHWICK, Circuit Judges.

OPINION

Page 1002

LESLIE H. SOUTHWICK, Circuit Judge:

Rony Alexander Paz Calix seeks review of the Board of Immigration Appeals' ruling that he is ineligible for cancellation of removal under the " stop-time rule." The government argues that this court may not consider his claim because he failed to exhaust his administrative remedies. We conclude that we have jurisdiction over the claim. On the merits, we agree with the BIA's holding that Paz Calix is ineligible for cancellation of removal. We therefore DENY the petition for review.

FACTS AND PROCEDURAL BACKGROUND

Rony Alexander Paz Calix, a native and citizen of Honduras, entered the United States in December 1997 as a lawful permanent-resident alien. He was convicted in February 2001 for possession of marijuana and in July 2007 for possession of cocaine.

In October 2009, the Department of Homeland Security charged Paz Calix with deportability under the Immigration and Nationality Act (" INA" ) as an alien convicted of a controlled substance violation after admission into the United States. Paz Calix conceded removability and requested cancellation of removal under 8 U.S.C. § 1229b(a). The government moved to pretermit Paz Calix's application. The immigration judge (" IJ" ) granted the government's motion in June 2011, concluding, pursuant to the " stop-time rule" in Section 1229b(d)(1), that Paz Calix's 2001 marijuana offense halted his accrual of continuous residence in the United States short of the seven years required for cancellation of removal. In September 2011, the IJ ordered Paz Calix's removal to Honduras.

Paz Calix timely appealed to the Board of Immigration Appeals (" BIA" ). In his

Page 1003

brief, Paz Calix explained that he had been a lawful permanent resident since December 1997 and was not seeking admission to the United States. Therefore, he argued that the 2001 offense that would render him inadmissible under the stop-time rule had no effect on his eligibility for cancellation of removal. In September 2013, the BIA affirmed the IJ's order of removal.

Paz Calix timely filed a petition for review with this court. The government, in addition to contesting the substance of Paz Calix's claim, argues that this court may not reach the claim because Paz Calix did not adequately raise it before the BIA and therefore failed to exhaust his administrative remedies.

DISCUSSION

I. Jurisdiction to Hear Paz Calix's Claims

A court may not review a final order of the BIA unless the alien has exhausted all administrative remedies. 8 U.S.C. § 1252(d)(1). Failure to exhaust administrative remedies is a jurisdictional bar. Claudio v. Holder, 601 F.3d 316, 318 (5th Cir. 2010).

Paz Calix argued both to the IJ and to the BIA that his 2001 conviction did not trigger the stop-time rule because he " was already admitted as a Lawful Permanent Resident on December 15, 1997, and he is not an arriving alien currently seeking admission into the United States." He cited an unpublished BIA decision which held that a lawful permanent-resident alien in a situation analogous to Paz Calix's " is not regarded as seeking admission . . . ." In re Lara-Terrazas, No. A36 587 673, 2006 WL 3922203, at *1 (BIA Dec. 11, 2006). The single member of the BIA who resolved Paz Calix's appeal did not mention Lara-Terrazas (though the IJ did), instead interpreting a later published BIA decision as holding that if an alien's crimes would render him inadmissible, continuous residence effectively ended even for a lawful permanent resident. See In re Jurado-Delgado, 24 I. & N. Dec. 29, 31 (BIA 2006).

Despite the specific language in Paz Calix's brief and the BIA's explicit rejection of his claim, the government argues that Paz Calix did not adequately present his claim and thus did not exhaust his administrative remedies regarding that claim. The principal shortcoming, the government argues, is the " complete dearth of legal support" for his construction of the stop-time rule. As we discuss below, there is little authority for either side to cite on this precise question. The Lara-Terrazas decision that Paz Calix did cite is one of the most relevant precedents supporting his claim. The BIA understood the argument and considered it. We see no failure to exhaust.

Similarly, appellate briefs must adequately present a legal argument by, among other things, providing citations to authorities. See L & A Contracting Co. v. S. Concrete Servs., Inc., 17 F.3d 106, 113 (5th Cir. 1994). Our refusal to consider poorly briefed arguments derives from the appellate rule requiring an appellant's brief to contain " contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies . . . ." Fed. R. App. P. 28(a)(8)(A); see also L & A Contracting, 17 F.3d at 113 & n.27. We conclude that no violation of this rule occurred. Paz Calix made his argument clearly, and cited one of the few cases relevant to the question at issue. A thin argument perhaps, but when the authority itself is thin, that may be sufficient. The briefing here suffices.

Page 1004

II. Paz Calix's Eligibility for ...


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