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                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 16-16775
                            Non-Argument Calendar
                          ________________________

                           Agency No. A097-985-358



MERCURIUS JALLIM,
a.k.a. Mercurius Messala Mauril Jallim,

                                                                          Petitioner,

                                          versus

U.S. ATTORNEY GENERAL,

                                                                        Respondent.

                          ________________________

                     Petition for Review of a Decision of the
                          Board of Immigration Appeals
                           ________________________

                               (October 17, 2017)

Before TJOFLAT, WILLIAM PRYOR, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      Petitioner Mercurius Jallim, a native and citizen of St. Lucia, petitions for

review from the Board of Immigration Appeals’s (“BIA”) decision affirming the

Immigration Judge’s (“IJ”) order of removal finding Petitioner inadmissible as an

arriving alien convicted of a crime involving moral turpitude. On appeal,

Petitioner argues that the BIA and IJ violated his due process rights by determining

that he was properly classified as an arriving alien. He also argues that the BIA’s

conclusion that he fell within one of the exceptions authorizing the Department of

Homeland Security (“DHS”) to charge him with inadmissibility was incorrect

legally and lacked reasoned consideration. After careful review, we deny the

petition for review in part and dismiss in part.

I.    BACKGROUND

      In 2006, Petitioner adjusted his status to that of a lawful permanent resident.

One year later, in 2007, he was convicted of financial identity fraud, in violation of

O.C.G.A. § 16-9-121. In 2015, Petitioner arrived at the airport in Atlanta and

applied for admission to the United States as a lawful permanent resident. The

DHS subsequently issued Petitioner a notice to appear (“NTA”) in October 2015,

charging him with inadmissibility under 8 U.S.C. § 1182(a)(2)(A)(i)(I), as an alien

who has been convicted of a crime involving moral turpitude.

      At a hearing before the IJ, Petitioner, through counsel, admitted the

allegations in the NTA and conceded removability. He indicated that he would


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seek relief in the form of cancellation of removal. The DHS later filed an

additional charge of inadmissibility: that Petitioner was inadmissible as an alien

who procured “admission into the United States or other benefit provided under”

the Immigration and Nationality Act by fraud or willful misrepresentation of a

material fact, in violation of 8 U.S.C. § 1182(a)(6)(C)(i). Specifically, the DHS

alleged that although Petitioner began committing financial identity fraud in

August 2000, on his subsequent adjustment-of-status application and in his

interview, he had answered “no” to a question that asked whether he had ever

knowingly committed a crime involving moral turpitude for which he had not been

arrested.

      At a subsequent hearing before the IJ, Petitioner, through counsel, contested

his classification as an arriving alien and requested to change his plea to deny

removability. Petitioner clarified that he was not contesting the actual allegation

that he had misrepresented a material fact on his adjustment-of-status application,

but was instead challenging the fact that he had been charged with inadmissibility

rather than removability. The IJ set the matter for another hearing to provide

counsel the opportunity to respond to the new charge.

      At the next hearing, Petitioner reiterated that because he was a lawful

permanent resident, he could be charged with removability under 8 U.S.C. § 1227

but not inadmissibility under 8 U.S.C. § 1182. In support of his argument, he


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relied on the BIA’s decision in Matter of Pena, 26 I. & N. Dec. 613 (BIA 2015).

Title 8 U.S.C. § 1101(a)(13)(C) provides that, as a general rule, a lawful permanent

resident cannot be regarded as seeking admission when he returns to the United

States after an overseas trip. 8 U.S.C. § 1101(a)(13)(C). But the statute provides

certain important exceptions to the rule. See id. In Matter of Pena, the BIA held

that a lawful permanent resident returning to the United States cannot be charged

with inadmissibility under § 1182 if he does not fit within one of the exceptions

outlined under 8 U.S.C. § 1101(a)(13)(C). See Matter of Pena, 26 I. & N. Dec. at

615.

       As the IJ explained, Matter of Pena is distinguishable from the present case

for several reasons, including the fact that the respondent in Matter of Pena did not

fit within any of the exceptions under § 1101(a)(13)(C). Here, however, Petitioner

fit within one of § 1101(a)(13)(C)’s exceptions based on his conviction for a crime

involving moral turpitude. See 8 U.S.C. § 1101(a)(13)(C)(v).

       In a written decision, the IJ therefore sustained the charges of

inadmissibility. The IJ acknowledged that lawful permanent residents who return

to the United States from a trip abroad are not typically considered applicants for

admission and therefore cannot be charged with inadmissibility. However, lawful

permanent residents who commit certain crimes before departing the United States,

such as a crime involving moral turpitude, are regarded as seeking admission and


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can be charged with inadmissibility. The IJ further explained that Petitioner’s

Georgia conviction for financial identity fraud, which required fraud with intent as

an element of the crime, qualified as a crime involving moral turpitude. Therefore,

the IJ concluded that Petitioner was properly classified as “seeking admission” at

the time of his entry in July 2015 and consequently the IJ sustained the

inadmissibility charges under § 1182(a)(2)(A)(i)(I) and § 1182(a)(6)(C)(i).

      After reviewing the IJ’s decision, Petitioner conceded that he was not

eligible for any form of relief. The IJ ordered Petitioner removed to St. Lucia.

      Petitioner appealed to the BIA, arguing that the IJ legally erred by failing to

apply the BIA’s decision in Matter of Pena when determining that Petitioner was

properly charged as an inadmissible alien. Petitioner argued that the facts in his

case were identical to those in Matter of Pena. Because the BIA concluded in

Matter of Pena that a returning lawful permanent resident cannot be charged with

inadmissibility under § 1182 if he does not fit within one of § 1101(a)(13)(C)’s

exceptions, Petitioner argued that he was improperly charged with a ground of

inadmissibility. Finally, he asserted that his improper classification as an

inadmissible alien prevented him from applying for any form of relief and, in

particular, cancellation of removal.

      The BIA adopted and affirmed the IJ’s decision and dismissed the appeal.

The BIA agreed that Petitioner was properly charged with inadmissibility under


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§ 1182, rather than removability as an admitted alien under § 1227 because his

financial identity fraud conviction qualified as a crime involving moral turpitude.

The BIA explained that Petitioner’s case was distinguishable from Matter of Pena

because Petitioner was convicted of a crime involving moral turpitude, which falls

within one of the exceptions under § 1101(a)(13)(C) that permit a lawful

permanent resident to be regarded as seeking admission and charged with

inadmissibility. No exception applied to the respondent in Matter of Pena.

      Further, the BIA stated that Petitioner had not challenged his financial

identity fraud conviction’s qualification as a crime involving moral turpitude, nor

did he argue that the IJ erred by concluding that Petitioner fell within the exception

authorizing the DHS to charge a returning lawful permanent resident with

inadmissibility. Therefore, the BIA concluded that Petitioner had waived these

issues.

II.   DISCUSSION

      On appeal, Petitioner argues that the BIA and IJ violated his due process

rights by determining that he was properly classified as an inadmissible alien,

despite his status as a lawful permanent resident.

      We review the BIA’s decision as the final judgment, unless the BIA

expressly adopted the IJ’s decision. Lopez v. U.S. Att’y Gen., 504 F.3d 1341, 1344

(11th Cir. 2007). Where the BIA agrees with the IJ’s reasoning, we also review


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the decision of the IJ to the extent of that agreement. Kazemzadeh v. U.S. Att’y

Gen., 577 F.3d 1341, 1350 (11th Cir. 2009). Here, the BIA adopted the IJ’s

findings and also issued its own decision.

      We review our subject matter jurisdiction de novo. Alvarado v. U.S. Att’y

Gen., 610 F.3d 1311, 1314 (11th Cir. 2010). Pursuant to 8 U.S.C. § 1252(a)(2)(C),

we lack jurisdiction to review the final order of removal of an alien who is

inadmissible or removable for having committed a crime involving moral

turpitude. See Vuksanovic v. U.S. Att’y Gen., 439 F.3d 1308, 1309–10 (11th Cir.

2006); 8 U.S.C. §§ 1252(a)(2)(C), 1182(a)(2). Despite the jurisdiction-stripping

provision of § 1252(a)(2)(C), we retain jurisdiction to review questions of law and

constitutional claims. 8 U.S.C. § 1252(a)(2)(D). We lack jurisdiction to consider a

claim that has not been presented to the BIA. Amaya-Artunduaga v. U.S. Att’y

Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (explaining that we lack jurisdiction to

consider claims that have not been exhausted to the BIA).

      Because the IJ and BIA found Petitioner inadmissible under

§ 1182(a)(2)(A)(i) for having been convicted of a crime involving moral

turpitude—indeed Petitioner did not challenge the fact that he was convicted of a

crime involving moral turpitude—the jurisdiction-stripping provision of

§ 1252(a)(2)(C) prevents us from reviewing Petitioner’s final order of removal,

except to the extent he raises a colorable constitutional claim or legal question. See


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8 U.S.C. §§ 1252(a)(2)(C), (a)(2)(D); Alhuay v. U.S. Att’y Gen., 661 F.3d 534, 548

n.15 (11th Cir. 2011) (“Allegations of constitutional violations must be

‘colorable.’”).

      As to Petitioner’s repeated contention that the BIA erred legally in rejecting

his legal argument that he was improperly charged as an inadmissible alien based

on the BIA’s decision in Matter of Pena, we have jurisdiction to consider his legal

argument. But we ultimately conclude that the facts in Matter of Pena are

distinguishable from the present case, and we therefore reject this argument.

      In Matter of Pena, the BIA concluded that a lawful permanent resident

returning to the United States cannot be regarded as seeking admission and thus

cannot not be charged with inadmissibility under § 1182, unless he fits within one

of the exceptions under 8 U.S.C. § 1101(a)(13)(C). Matter of Pena, 26 I. & N.

Dec. at 616–20. Section 1101(a)(13)(C) provides in relevant part that “[a]n alien

lawfully admitted for permanent residence in the United States shall not be

regarded as seeking an admission into the United States . . . unless the alien has

committed [a crime involving moral turpitude].” 8 U.S.C. § 1101(a)(13)(C)(v).

Because the respondent in Matter of Pena did not fit within one the exceptions

outlined in § 1101(a)(13)(C), the BIA determined that he could not be regarded as




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seeking admission and thus could not be charged with inadmissibility. 1 Matter of

Pena, 26 I. & N. Dec. at 616–20.

       Unlike the respondent in Matter of Pena, Petitioner was convicted of a crime

involving moral turpitude and therefore fit within the exception set forth in

§ 1101(a)(13)(C)(v). See 8 U.S.C. § 1101(a)(13)(C)(v). In short, although

Petitioner was a lawful permanent resident returning to the United States, he could

be regarded as seeking admission and charged with inadmissibility because his

conviction for a crime involving moral turpitude fell within one of the exceptions

outlined in § 1101(a)(13)(C). See Matter of Pena, 26 I. & N. Dec. at 615, 619. We

therefore deny this portion of the petition for review.

       Petitioner also argues that the BIA’s conclusion that he fell within one of the

statutory exceptions under § 1101(a)(13)(C) was arbitrary and capricious and

lacked reasoned consideration. While we typically retain jurisdiction to review an

argument that the agency did not give reasoned consideration to a claim, Petitioner


1
  The respondent in Matter of Pena had previously been granted lawful permanent resident
status, and upon returning to the United States, he informed immigration authorities that he had
been arrested in 1998 for applying for a U.S. passport using someone else’s identification—a fact
he had not included on his adjustment-of-status application. Matter of Pena, 26 I. & N. Dec. at
614. The DHS charged him with inadmissibility under § 1182 based on the suspected fraud and
prior ineligibility to adjust status to that of a lawful permanent resident. Id. The IJ concluded
that the respondent had unlawfully obtained his lawful permanent resident status and could
therefore be regarded as seeking admission and charged with inadmissibility under § 1182. Id.
On appeal, the BIA concluded that the petitioner could not be charged with inadmissibility
because did not meet any of the exceptions under § 1101(a)(13)(C) that permit the DHS to
charge a lawful permanent resident with inadmissibility. Id. at 619. The BIA remanded to
provide the DHS the opportunity to charge the respondent with removability under § 1227. Id. at
620.
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never argued before the BIA that his conviction for a crime involving moral

turpitude did not bring him within any of the exceptions outlined in

§ 1101(a)(13)(C). See Malu v. U.S. Att’y Gen., 764 F.3d 1282, 1289 (11th Cir.

2014) (explaining that we retain jurisdiction to consider whether the BIA gave

reasoned consideration to a claim because it is a question of law); Amaya-

Artunduaga, 463 F.3d at 1250.

      In his brief to the BIA, Petitioner argued in a cursory fashion that the BIA

should find “as it previously did in [Matter of Pena], that [Petitioner], a returning

[lawful permanent resident] with a colorable claim to [lawful permanent resident

status], who does not fall within the exceptions outlined in [§ 1101(a)(13)(C)],

should not have been regarded as seeking admission to the U.S.” This conclusory

statement, however, without any further argument as to why his conviction for a

crime involving moral turpitude did not meet any of the exceptions outlined in

§ 1101(a)(13)(C), was insufficient to exhaust the argument. See Indrawati v. U.S.

Att’y Gen., 779 F.3d 1284, 1297 (11th Cir. 2015) (explaining that “[u]nadorned,

conclusory statements” do not satisfy the exhaustion requirement). In fact, the

BIA concluded that Petitioner had waived any argument that his financial identity

fraud conviction did not qualify as a crime involving moral turpitude, or that the IJ

erred by concluding that Petitioner fell within the exception under

§ 1101(a)(13)(C)(v).


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      Nevertheless, Petitioner’s reasoned-consideration argument is meritless in

any event. When reviewing for reasoned consideration, we consider whether the

BIA “consider[ed] the issues raised and announce[d] their decision in terms

sufficient to enable a reviewing court to perceive that they have heard and thought

and not merely reacted.” Cole v. U.S. Att’y Gen., 712 F.3d 517, 534 (11th Cir.

2013) (quotations omitted). In its decision, the BIA discussed Petitioner’s

arguments and the inapplicability of Matter of Pena. The BIA also determined that

Petitioner waived any argument pertaining to the IJ’s holding that he met the

exception outlined in § 1101(a)(13)(C)(v) because he failed to challenge the IJ’s

determination on that issue. Because we are satisfied that the BIA “heard and

thought and not merely reacted,” Petitioner’s reasoned-consideration argument is

without merit. See Cole, 712 F.3d at 534; Cf. Gonzalez-Oropeza v. U.S. Att’y

Gen., 321 F.3d 1331, 1333 (11th Cir. 2003) (concluding that we lack jurisdiction to

consider a constitutional claim that has no merit).

      PETITION DENIED IN PART AND DISMISSED IN PART.




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