Mao Sheng Zheng v. U.S. Attorney General ( 2015 )

Case: 14-15822 Date Filed: 09/03/2015 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-15822
Non-Argument Calendar
________________________
Agency No. A070-423-265
MAO SHENG ZHENG,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(September 3, 2015)
Before WILLIAM PRYOR, MARTIN and JULIE CARNES, Circuit Judges.
PER CURIAM:
Mao Sheng Zheng appeals the Board of Immigration Appeals’ (BIA)
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decision that he was excludable from the United States. 1 Zheng is a native and
citizen of China. He was first charged with a notice of excludability in 1991,
shortly after he sought admission to the United States using someone else’s
passport. After a series of proceedings not relevant to this appeal, an IJ ordered
Zheng’s deportation in 2013. The IJ’s decision was based on two separate
provisions of the Immigration and Nationality Act (INA). First, Zheng conceded
that he was excludable under former INA § 212(a)(20), 8 U.S.C. § 1182(a)(20)
(1988) (current version at 8 U.S.C. § 1182(a)(7) (2013)), because he was “not in
possession of a valid unexpired immigrant visa, reentry permit, border crossing
identification card, or other valid entry document” at the time that he sought
admission to the United States. Second, the IJ found that Zheng was also
excludable under former INA § 212(a)(19), 8 U.S.C. § 1182(a)(19) (1988) (current
version at 8 U.S.C. § 1182(a)(6)(C)(1) (2013)), which bars the admission of any
person who seeks entry into the United States “by fraud or willfully
misrepresenting a material fact.”
1
Zheng’s immigration proceedings began in 1991. At that time, federal immigration law
recognized a distinction between “exclusion” proceedings, which generally applied to
prospective immigrants seeking to enter the United States, and “deportation” proceedings, which
generally applied to immigrants who already resided here. See Vartelas v. Holder, 566 U.S. ___,
___, 132 S. Ct. 1479, 1484 (2012). In 1996, Congress passed the Illegal Immigration Reform
and Immigrant Responsibility Act (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009 (1996), which
eliminated the distinction between exclusion and deportation proceedings and replaced them
with a single “removal” proceeding. Scheerer v. U.S. Att’y Gen., 513 F.3d 1244, 1252 n.8 (11th
Cir. 2008). However, because Zheng’s immigration proceedings began before the IIRIRA went
into effect, we apply the relevant law as it existed at the time that his proceedings began. See
IIRIRA § 309(a), (c).
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Zheng filed an appeal with the BIA, challenging only the IJ’s finding of
fraud or willful misrepresentation. Without adopting the IJ’s decision, and
expressly declining to reach Zheng’s § 212(a)(19) argument, the BIA observed that
Zheng had conceded he had tried to enter the United States without a valid entry
document, in violation of § 212(a)(20). For this reason, it found that Zheng was
excludable and dismissed his appeal.
In his appeal in this Court, Zheng makes no argument regarding the BIA’s
§ 212(a)(20) holding. Instead, he argues that the IJ erred by finding that he entered
the United States by fraud or willful misrepresentation. However, we are unable to
address any claimed error by the IJ because the BIA issued its own opinion without
expressly adopting the IJ’s decision. Thus, we review only the BIA’s opinion.
Indrawati v. U.S. Att’y Gen., 779 F.3d 1284, 1297 (11th Cir. 2015). Zheng’s
arguments regarding the IJ’s decision lie beyond the scope of our review.
Neither are we able to address Zheng’s excludability under § 212(a)(20).
We lack jurisdiction to review a petitioner’s claim unless he has exhausted all
available administrative remedies, which includes raising the claim in an appeal to
the BIA. Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir.
2006) (per curiam). This is true even where, as here, the BIA addresses an issue of
its own accord. Id. at 1251. Because Zheng failed to raise any claim challenging
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his excludability under § 212(a)(20) before the BIA, we lack jurisdiction to
consider any such argument here.
PETITION DENIED.
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