5th Cir: Issue mentioned in Notice of Appeal but not briefed is waived

In a decision released last week, the Fifth Circuit Court of Appeals held that an issue that is mentioned in the Notice of Appeal but is not addressed in a brief subsequently submitted to the BIA is waived. Claudio v. Holder, No. 08-61060, slip op. (March 17, 2010) (Garza, DeMoss, and Clement). Judge Garza wrote the panel’s decision.

Marion Claudio, a lawful permanent resident, pleaded guilty to aggravated robbery in violation of Tex. Penal Code § 29.03. Claudio, No. 08-61060, slip op. at 1. Sometime later DHS initiated removal proceedings alleging that Claudio’s conviction constituted a firearms offense under INA § 237(a)(2)(C), 8 U.S.C. § 1227(a)(2)(C). Claudio, No. 08-61060, slip op. at 1. The IJ agreed with DHS. Claudio, No. 08-61060, slip op. at 2.

In his Notice of Appeal to the BIA, Claudio contended that he was not deportable under § 237(a)(2)(C). Claudio, No. 08-61060, slip op. at 2. “Claudio indicated that he would file a brief in support of his appeal. Claudio then filed a brief but did not address whether he was removable under 8 U.S.C. § 1227(a)(2)(C) [INA § 237(a)(2)(C)] on the basis of his conviction.” Claudio, No. 08-61060, slip op. at 2. Because Claudio did not address the IJ’s removability finding in his brief, “[t]he BIA considered the issue abandoned and declined to consider it.” Claudio, No. 08-61060, slip op. at 2.

Claudio later appealed to the Fifth Circuit and challenged the IJ’s removability finding. In his appeal to the Fifth Circuit, Claudio urged that the Fifth Circuit should decide whether the IJ was correct or remand to the BIA for the purpose of deciding whether the IJ removability finding was correct. Claudio, No. 08-61060, slip op. at 2. DHS argued “that Claudio failed to exhaust the issue and thus we [the Fifth Circuit] lack jurisdiction.” Claudio, No. 08-61060, slip op. at 2.

The Fifth Circuit agreed with DHS. The Court first explained that it may only consider questions of law “‘if the alien has exhausted all administrative remedies available to the alien as of right.’” Claudio, No. 08-61060, slip op. at 2-3 (quoting 8 U.S.C. § 1252(d)(1)). The Court acknowledged that the Third Circuit held “that exhaustion of an issue ‘does not require an appellant before the BIA, who has clearly identified an issue in his notice of appeal, to reiterate and to address that same issue in an optional brief.’” Claudio, No. 08-61060, slip op. at 2 (quoting Hoxha v. Holder, 559 F.3d 157, 163 (3d Cir. 2009)).

The Fifth Circuit, however, was more persuaded by decisions of the Sixth Circuit and Ninth Circuit in which those courts held that, when a non-citizen files a brief with the BIA, any issues not addressed in the brief are waived. Claudio, No. 08-61060, slip op. at 3 (discussing Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) and Ramani v. Ashcroft, 378 F.3d 554, 558 (6th Cir. 2004)). According to the Fifth Circuit, “once a petitioner elects in his notice of appeal to file a brief, that brief becomes the operative document through which any issues that a petitioner wishes to have considered must be raised.” Claudio, No. 08-61060, slip op. at 4.

Though this decision is not strictly limited to crimmigration issues, it is nonetheless important for attorneys represented folks with criminal histories. In addition, the circuit split to which this case contributes reiterates the importance of checking the status of the law in the circuit in which your client’s case is located.