Garcia Apostol v. Gonzales

MEMORANDUM ***

Maria Fe Garcia Apostol, a native and citizen of the Philippines, petitions for review of the Board of Immigration Appeals’ (“BIA”) order affirming the immigration judge’s (“IJ”) decision, which found her removable as charged and denied both waiver of removal and voluntary departure. Because the parties are familiar with the facts, we recite them only as necessary for our decision.

I.

On appeal, it is somewhat unclear whether Apostol challenges (on the ground of legal impossibility) her removability in the first instance, or rather, whether she argues only that the BIA failed to sufficiently consider her legal impossibility argument in exercising its discretion on her waiver application. In any event, she has failed to exhaust the former claim by not raising it before the BIA. Apostol’s BIA brief argued for reversal of only the IJ’s decisions to deny waiver of removal and voluntary departure, and on just two grounds: (1) that she was denied her due process right to a full and fair hearing; and (2) that the IJ abused his discretion. While that brief noted in passing that “[Apostol] had argued against removability, in that it was legally impossible for her to have…