Background
Aura Lopez-Lopez entered the United States illegally from Guatemala in 2006. In 2016, she was convicted in Nebraska of negligent child abuse under Neb. Rev. Stat. § 28-707(3) and sentenced to one year of probation. Following her conviction, removal proceedings were initiated against her. Lopez-Lopez conceded removability but sought relief through cancellation of removal.
The immigration judge determined that Lopez-Lopez was ineligible for cancellation of removal because her child abuse conviction constituted a “crime of child abuse” under 8 U.S.C. § 1227(a)(2)(E)(i), which bars such relief. Lopez-Lopez contested this determination, but the Board of Immigration Appeals affirmed the immigration judge’s decision and rejected her appeal.
On petition for review to the Eighth Circuit, Lopez-Lopez raised new arguments for the first time: that the agency relied on the wrong statute in declaring her ineligible and that it overlooked the petty-offense exception. These issues had not been presented to the immigration judge or the Board.
The Court’s Holding
The Eighth Circuit held that it could not review Lopez-Lopez’s new arguments because she failed to exhaust her administrative remedies. The court emphasized that when immigration proceedings are adversarial in nature and the petitioner is represented by counsel, unraised issues cannot be addressed on appeal. The court must be “a court of review, not first view.”
The court noted that Lopez-Lopez’s proceedings were clearly adversarial—the government sought deportation while she argued for cancellation of removal. Additionally, she was represented by counsel throughout the administrative process. Despite these circumstances, she failed to raise her arguments about statutory interpretation and the petty-offense exception before the immigration judge or the Board. Instead, the focus of her administrative proceedings was on whether her conviction fit the generic federal definition of child abuse, an argument she later abandoned.
Because Lopez-Lopez did not present these issues to the agency, the court had nothing to review and therefore denied her petition for review.
Key Takeaways
- Immigration applicants must raise all arguments during administrative proceedings before the immigration judge and Board of Immigration Appeals, or forfeit the right to raise them on appeal.
- The administrative exhaustion requirement applies when proceedings are adversarial and the petitioner is represented by counsel.
- Courts of appeals will not consider issues for the first time on appeal, even if they might have merit.
- The statutory basis for the administrative exhaustion requirement remains somewhat unclear, but the doctrine is firmly established in the Eighth Circuit.
Why It Matters
This decision reinforces a critical procedural requirement for immigration appellants: failure to present arguments at the administrative stage results in waiver of those arguments on appeal, regardless of their potential merit. For immigrants seeking relief from removal, this means counsel must identify and present every available argument before the immigration judge and BIA.
The decision also highlights the distinction between exhausting available forms of administrative review and exhausting all possible legal arguments within those reviews. An applicant may exhaust the available remedies—such as filing for cancellation of removal—without exhausting every possible legal theory supporting that remedy. Practitioners must ensure comprehensive argument presentation at the administrative level to preserve appellate review rights.