[DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                   FILED
                                                           U.S. COURT OF APPEALS
                               No. 09-12506                  ELEVENTH CIRCUIT
                                                                 JULY 6, 2010
                           Non-Argument Calendar
                                                                  JOHN LEY
                         ________________________
                                                                   CLERK

                           Agency No. A099-747-604

ONDINA DEL VALLE GARCIA SALAZAR,

                                                                        Petitioner,

                                     versus

U.S. ATTORNEY GENERAL,

                                                                      Respondent.

                         ________________________

                     Petition for Review of a Decision of the
                          Board of Immigration Appeals
                          _________________________
                                   (July 6, 2010)

Before BARKETT, HULL and MARCUS, Circuit Judges.

PER CURIAM:

      Ondina Del Valle Garcia Salazar seeks review of the Board of Immigration

Appeals’ (“BIA”) order of removal imposed upon its reversal of the Immigration

Judge’s (“IJ”) grant of cancellation of removal pursuant to 8 U.S.C. § 1229b. On
appeal, Garcia Salazar argues that the BIA acted ultra vires in ordering her

removed because, though she conceded her removability before the IJ, the IJ

neither made a finding of removability nor ordered her removed in the first

instance. After thorough review, we grant the petition.1

       We review jurisdictional questions de novo.             Amaya-Artunduaga v. U.S.

Att’y Gen., 

, 1250 (11th Cir. 2006).                 We also review de novo

constitutional claims and questions of law.           Mohammed v. Ashcroft, 

, 1247 (11th Cir. 2001).

       As an initial matter, we are unpersuaded by the government’s argument that

the exhaustion requirement bars Garcia Salazar’s claim because she did not

challenge the IJ’s failure to make a finding of removability in her brief to the BIA.

A court may not review a final order of removal unless “the alien has exhausted all

administrative remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1).

This requirement is jurisdictional and, absent an excuse or exception, bars review

of claims not raised before the BIA. 

. In

Amaya-Artunduaga, we explained that:


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         Garcia Salazar’s petition for review challenges only the BIA’s order that she be
removed and she has not sought out review of any aspect of the BIA’s decision vacating the IJ’s
grant of cancellation of removal. We note in this regard that we are precluded from reviewing
discretionary agency decisions regarding cancellation of removal, see e.g., Martinez v. U.S.
Att’y Gen., 

, 1221 (11th Cir. 2006), including the determination that a petitioner
did not establish the “exceptional and extremely unusual hardship” requirement for cancellation
of removal, 

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      [T]he exhaustion doctrine exists, in part, to avoid premature
      interference with administrative processes and to allow the agency to
      consider the relevant issues. Courts have also opined, however, that
      § 1252(d)(1)’s exhaustion requirement ensures the agency has had a
      full opportunity to consider a petitioner’s claims, and to allow the BIA
      to compile a record which is adequate for judicial review. Reviewing
      a claim that has not been presented to the BIA, even when the BIA has
      considered the underlying issue sua sponte, frustrates these objectives.
      An issue or claim does not exist in isolation; rather, each is presented
      in the context of argument. Requiring exhaustion allows the BIA to
      consider the niceties and contours of the relevant arguments, thereby
      fully considering the petitioner’s claims and compiling a record which
      is adequate for judicial review.

(citations, quotations, and alterations omitted).

      In this case, however, it is not appropriate to apply the exhaustion

requirement to Garcia Salazar’s claim.         When Garcia Salazar, represented by

counsel, appeared before the IJ, she conceded removability and filed an application

for cancellation of removal, but the IJ neither made an explicit finding that Garcia

Salazar was removable nor ordered her removed. Instead, after considering her

testimony and the submitted exhibits, the IJ granted her cancellation of removal.

The government filed a notice of appeal to the BIA, arguing that the IJ erred in

granting Garcia Salazar cancellation of removal.         In its brief, the government

requested that the BIA not only reverse the IJ’s decision, but also order Garcia

Salazar removed to Venezuela. The BIA issued an order vacating the IJ’s decision

and ordered Garcia Salazar removed from the United States.



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      Due to the procedural posture of the case, Garcia Salazar did not receive

adequate notice that if she did not argue, in her brief to the BIA, that the IJ failed to

make an initial finding of removal, she then would forfeit her present ultra vires

contention on appeal.     While the IJ gave Garcia Salazar notice of her right to

appeal the decision, Garcia Salazar reasonably may have construed that notice as

applying solely to the IJ’s denial of withholding of removal and CAT relief, and

she did not appeal those denials to the BIA or to this Court. It is more difficult,

however, to construe that notice as applying to the IJ’s failure to make an initial

finding of removal, which is what the government essentially argues.                And

although the government’s brief to the BIA included a request that it order Garcia

Salazar removed to Venezuela, the government made that request in passing, and

its brief did not contain any discussion of the merits of the request.

      Furthermore, one of the concerns behind the exhaustion requirement,

namely, giving the BIA an opportunity to compile an adequate record for judicial

review, is not present in this case because Garcia Salazar’s claim presents a purely

legal issue that we review de novo. Therefore, we do not dismiss Garcia Salazar’s

petition for lack of jurisdiction on exhaustion grounds.

      Turning to the merits of Garcia Salazar’s petition, we agree that the BIA did

not have the independent statutory authority to issue an order of removal in the

first instance.   Under 8 U.S.C. § 1229a(a)(1), it is the IJ who “shall conduct
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proceedings for deciding the inadmissibility or deportability of an alien.”

Moreover, 8 U.S.C. § 1229a(a)(3) provides that: “Unless otherwise specified in

this chapter, a proceeding under this section shall be the sole and exclusive

procedure for determining whether an alien may be . . . removed from the United

States.” Likewise, 8 U.S.C. § 1229a(c)(1)(A) provides that: “At the conclusion of

the [removal] proceeding the [IJ] shall decide whether an alien is removable from

the United States.” Further, the BIA’s role in the removal process is mentioned in

8 U.S.C. § 1101(a)(47)(B), which provides that an order of removal becomes

“final” only upon “a determination by the [BIA] affirming such order” or “the

expiration of the period in which the alien is permitted to seek review of such order

by the [BIA].” As a result, other than a provision that allows the Attorney General

to designate another administrative officer to determine whether an alien is

removable, it is the IJ who determines removability in the first instance. See 8

U.S.C. § 1101(a)(47)(A).

      The statutory scheme, therefore, does not vest the BIA with the authority to

issue an order of removal in the first instance. This position has been adopted by

the Fifth, Tenth, and Second Circuits. See James v. Gonzales, 

, 514

(5th Cir. 2006); Sosa-Valenzuela v. Gonzales, 

, 1145 (10th Cir.

2007); Rhodes-Bradford v. Keisler, 

, 81 (2d Cir. 2007); see also In re I-

S- & C-S-, 24 I.&N. Dec. 432, 434 (BIA 2008) (“We find that the proceedings in
                                          5
this case are unresolved and incomplete because the [IJ] found the respondents

removable and granted their application for withholding of removal but failed to

order them removed.”). In such circumstances, these courts all remanded their

respective cases to the BIA in order for the BIA to remand to the IJ for an entry of

an order of removal. See 

; 

; 

.

      In this case, the BIA entered an order of removal even though the IJ neither

made an initial determination of Garcia Salazar’s removability nor ordered her

removed in the first instance. Based on the statutory language, we agree with the

Second, Fifth, and Tenth Circuits that the BIA did not have the independent

statutory authority to issue an order of removal in the first instance. As a result, we

grant Garcia Salazar’s petition and remand to the BIA so that the BIA may remand

to the IJ for further proceedings. Because we remand on this basis, we do not

address Garcia Salazar’s other contentions on appeal.

      PETITION GRANTED.




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