Baltazar Hernandez Barron Margarita Hernandez Ramirez v. John Ashcroft, Attorney General

We must decide whether we have jurisdiction to consider a due process claim that the petitioners did not present to the Immigration and Naturalization Service or to the Board of Immigration Appeals.

I

Baltazar Hernandez Barron and Margarita Hernandez Ramirez (“the petition ers”) are married natives and citizens of Mexico who illegally entered the United States near San Ysidro, California in February 1985 and January 1988, respectively. The Immigration and Naturalization Service (“INS”) began removal proceedings against them on July 11, 1997 after serving Notices to Appear charging them as removable pursuant to § 212(a)(6)(A)(i) of the Immigration and Nationality Act (“INA”). The petitioners admitted then-removability and asked for relief through either cancellation of removal or voluntary departure.

Although the petitioners’ counsel failed to appear at their removal hearing on June 30, 1998, the Immigration Judge (“IJ”) decided to proceed as scheduled. Ultimately, the IJ denied the petitioners’ applications for cancellation of removal, but granted their request for voluntary departure. The Board of Immigration Appeals (“BIA”) affirmed the IJ’s decision without opinion on March…