Erlinda Gerardo Zara v. John Ashcroft, Attorney General

Petitioner Erlinda Gerardo Zara petitions for review of the Board of Immigration Appeals’ (“BIA”) affirmance without opinion of the immigration judge’s (“IJ”) denial of her applications for asylum, withholding of removal, voluntary departure and relief under the Convention Against Torture (“CAT”). In her appeal to the BIA, the only issue Zara raised was her challenge to the IJ’s finding that the Aquino Party was no longer in power when she left the Philippines and the impact that alleged error had on her other applications for relief. Zara did not present to the BIA the critical issue she now presents to us concerning the IJ’s adverse credibility finding, nor did she challenge the IJ’s determination that she presented insufficient evidence of torture as defined by the CAT, nor did she contend the IJ abused his *929 discretion in denying her request for voluntary departure.

Because Zara did not exhaust her administrative remedies, we do not have jurisdiction to consider the claims she presents in her petition for review. Accordingly, that petition is dismissed.

BACKGROUND

Zara, a native and citizen of the Philippines, entered the United States on July 12, 1992, pursuant to a…

dissenting:

The majority holds that we do not have jurisdiction to review Zara’s claims, because she faded to exhaust her administrative remedies by not raising them in her brief to the BIA. Yet, none of the cases relied on by the majority for the proposition that Zara failed to exhaust her administrative remedies involved a BIA affir-mance without opinion (or “streamlining”); indeed, all but one were decided before the streamlining regulation was even adopted. Because the IJ’s decision is the final agency determination under review in this streamlined case, I would hold that Zara exhausted her administrative remedies by raising them before the IJ. I therefore respectfully dissent from the majority’s contrary holding.

*932 The jurisdictional exhaustion requirement, as opposed to any prudential implications of exhaustion, is bottomed on the doctrine of the separation of powers. See Marathon Oil Co. v. United States, 807 F.2d 759, 768 (9th Cir.1986). Thus, we can review only those issues actually decided by the agency, see Fisher v. INS, 79 F.3d 955, 963 (9th Cir.1996) (en banc), and, indeed, cannot affirm the agency on a basis it did not explicitly consider. See SEC v. Chenery…

383 F.3d 927 Erlinda Gerardo ZARA, Petitioner, v. John ASHCROFT, Attorney General, Respondent. No. 02-74077. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 15, 2004. Filed September 7, 2004. Rodel E. Rodis, San Francisco, CA, for the petitioner. Rena I. Curtis, Department of Justice, Washington, DC, for the respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. Aty-wqj-jnb. Before DAVID R. THOMPSON, TASHIMA, and RAWLINSON, Circuit Judges. THOMPSON, Senior Circuit Judge. 1 Petitioner Erlinda Gerardo Zara petitions for review of the Board of Immigration Appeals' ("BIA") affirmance without opinion of the immigration judge's ("IJ") denial of her applications for asylum, withholding of removal, voluntary departure and relief under the Convention Against Torture ("CAT"). In her appeal to the BIA, the only issue Zara raised was her challenge to the IJ's finding that the Aquino Party was no longer in power when she left the Philippines and the impact that alleged error had on her other applications for relief. Zara did not present to the BIA the critical issue she now presents to us concerning the IJ's adverse credibility…