Issac Danilo Matute v. U.S. Attorney General ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DECEMBER 4, 2009
No. 09-11341 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A038-869-762
ISSAC DANILO MATUTE,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(December 4, 2009)
Before CARNES, BARKETT and KRAVITCH, Circuit Judges.
PER CURIAM:
Petitioner Issac Danilo Matute, a native and citizen of Honduras, through
counsel, seeks review of the Board of Immigration Appeals’s (“BIA”) decision
affirming the Immigration Judge’s (“IJ”) order finding him removable and denying
his application for a waiver of inadmissibility under former § 212(c) of the
Immigration and Naturalization Act (“INA”), 8 U.S.C. § 1182(c) (1996). We deny
the petition.
I.
In 2005, the Department of Homeland Security (“DHS”) served Matute with
a notice to appear (“NTA”), charging him with removability on three grounds:
(1) under INA § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i), for being convicted
of a crime involving moral turpitude within five years of admission for which a
sentence of one year or longer may be imposed; (2) under INA § 237(a)(2)(A)(ii),
8 U.S.C. § 1227(a)(2)(A)(ii), for being convicted, any time after admission, of two
crimes involving moral turpitude not arising out of a single scheme of criminal
misconduct; and (3) under INA § 237(a)(3)(D), 8 U.S.C. § 1227(a)(3)(D), for
being an alien who has falsely represented himself to be a citizen of the United
States for any purpose or benefit under either the INA or a federal or state law.
Matute conceded his removability on the first two grounds, based on his
1990 Florida state court convictions for grand theft vehicle, burglary of a
conveyance, and possession of burglary tools. With regard to the third ground,
Matute conceded that, in 2004, he filed a voter registration application in which he
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falsely claimed to be a citizen of the United States, but he argued that he was not
removable on that basis because he did not do so “knowingly.” Matute also filed
an application for a waiver of inadmissibility on the moral turpitude grounds, under
former INA § 212(c), 8 U.S.C. § 1182(c) (1996), but he conceded that the false
representation charge was not subject to a waiver and, accordingly, if the IJ
sustained that charge, his waiver argument would be moot.
Following a removal hearing, the IJ found Matute removable as charged.
The IJ also implicitly denied Matute’s application for a waiver of inadmissibility,
finding him ineligible for such relief based on his removability under INA
§ 237(a)(3)(D). Even so, the IJ explicitly stated that he “[was] not denying the
application for the waiver in the exercise of discretion, meaning that should the
case come back on remand, [Matute] would be free to pursue the application . . . .”
The BIA likewise denied relief. It noted Matute’s criminal convictions and
affirmed the IJ’s finding that Matute “knowingly made a false representation to
United States citizenship in registering to vote,” as necessary to sustain the third
charge, under INA § 237(a)(3)(D).
On appeal, Matute first argues that a jurisdictional bar to reviewing
discretionary decisions does not apply to his case. Substantively, he challenges the
BIA’s finding that he misrepresented his citizenship status and argues that the BIA
should have interpreted the statute to include a mens rea requirement that such
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misrepresentation be made “knowingly.” While Matute concedes that a second
jurisdictional bar involving criminal aliens applies, he maintains that we still have
jurisdiction to consider his petition because he has raised a question of law.1 We
agree that the misrepresentation must have been made knowingly and to the extent
that this conclusion is a legal determination, we have jurisdiction. However, there
is no question that the IJ conducted a hearing, heard testimony, and determined that
Matute did know that he was signing a false statement. We find no error.
PETITION DENIED.
1
Matute also raises several new claims for the first time on appeal, but we lack jurisdiction
to review these arguments. See Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th
Cir. 2006) (“[A]bsent a cognizable excuse or exception,” this Court “lack[s] jurisdiction to consider
a claim raised in a petition for review unless the petitioner has exhausted his administrative remedies
with respect thereto.”).
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