Issac Danilo Matute v. U.S. Attorney General, No. 09-11341 (11th Cir. 2009)
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[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT No. 09-11341 Non-Argument Calendar ________________________ DECEMBER 4, 2009 THOMAS K. KAHN 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 2 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 3 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. ). 4
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