          United States Court of Appeals
                      For the First Circuit

No. 14-1999

                   ANDRÉS RODOLFO PÉREZ BATRES,

                           Petitioner,

                                v.

                         LORETTA E. LYNCH,
              Attorney General of the United States,*

                           Respondent.


                PETITION FOR REVIEW OF AN ORDER OF
                 THE BOARD OF IMMIGRATION APPEALS


                              Before

                  Torruella, Lynch, and Kayatta,
                          Circuit Judges.


     Hans J. Bremer and Bremer Law & Associates, LLC on brief for
petitioner.
     Jennifer R. Khouri, Trial Attorney, Office of Immigration
Litigation, Civil Division, United States Department of Justice,
Benjamin Mizer, Acting Assistant Attorney General, and Jennifer P.
Levings, Senior Litigation Counsel, Office of Immigration
Litigation, on brief for respondent.


                         August 12, 2015




     *  Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Loretta E. Lynch has been substituted for former Attorney General
Eric H. Holder, Jr., as the respondent.
            LYNCH, Circuit Judge.     Andrés Rodolfo Pérez Batres, a

native and citizen of Guatemala who has been illegally present in

this country, petitions for review of the Board of Immigration

Appeals' (BIA) decision dismissing his appeal of an Immigration

Judge's (IJ) removal order.   He now argues to this court that the

government is estopped from removing him because it failed to take

from him an invalid lawful permanent resident (LPR) card he had

once been issued and to update its databases to reflect that he

was not an LPR.      Because Pérez Batres raises his argument of

equitable estoppel for government misconduct for the first time on

petition to this court, he has failed to exhaust his administrative

remedies with the BIA.      We lack jurisdiction and dismiss his

petition.

                                 I.

            Between 1974 and 2009, Pérez Batres traveled in and out

of the United States approximately 70 times. He entered the United

States without being admitted or paroled in 1974.        After being

deported in June 1976, he reentered illegally in November 1976.

An IJ ordered Pérez Batres to be deported in 1979 and granted his

application for voluntary departure.     Pérez Batres remained in the

United States.

            In March 1981, Pérez Batres filed an Application for

Permission to Reapply for Admission into the United States After

Deportation or Removal (Form I-212) based on his marriage to a


                                    - 2 -
United States citizen.        He left the United States on May 11, 1981,

and went to the United States Consulate in Halifax, Nova Scotia,

Canada.    Pérez Batres obtained LPR status -- apparently because he

wrongfully represented that he had been removed only once, rather

than two times -- and was admitted to the United States on May 12,

1981.

            Pérez Batres was placed in deportation proceedings, and

in 1984, an IJ ordered Pérez Batres removed, terminated his LPR

status, and granted him voluntary departure.            The BIA affirmed the

IJ's decision in 1986.        Immigration officials failed to confiscate

his now invalidated LPR card and to update their databases,

however.

            Using his invalid LPR card, Pérez Batres continued to

travel to and from the United States approximately twice a year

until     2009.     In   November    2009,      Pérez   Batres   applied    for

naturalization.     His application was denied because he failed to

establish he was lawfully admitted as a permanent resident and he

failed to demonstrate good moral character in that he made false

statements about a number of issues, including his immigration

history and prior arrests.

            The Department of Homeland Security served Pérez Batres

with a Notice to Appear in 2011.        Pérez Batres appeared in hearings

before an IJ in 2012 and 2013, at the end of which the IJ found

him     removable   because     he   obtained     immigration    benefits   --


                                       - 3 -
including his LPR status and numerous entries into the United

States -- by fraud or material representation and because he

entered the United States without valid documentation.              Pérez

Batres appealed to the BIA.     He argued that the government failed

to establish that he had any intent to commit fraud because he

believed he held a valid green card.1         Pérez Batres also claimed

that the IJ did not afford appropriate weight to evidence that he

made an honest mistake in his 2009 naturalization application.

The BIA affirmed the IJ's finding and dismissed his appeal.         Pérez

Batres's petition for judicial review followed.

                                     II.

            In his petition for review of the BIA's decision, Pérez

Batres   argues   that   equitable    estoppel   should   be   applied   to

terminate   proceedings    against    him.    Pérez   Batres   brought   a

different theory before the BIA, however.          Indeed, Pérez Batres




     1 The Immigration and Nationality Act (INA) § 212(a)(6)(C)(i)
provides, "[a]ny alien who, by fraud or willfully misrepresenting
a material fact, seeks to procure (or has sought to procure or has
procured) a visa, other documentation, or admission into the United
States or other benefit provided under this Act is inadmissible."
See 8 U.S.C. § 1182(a)(6)(C)(i).     Pérez Batres cited cases to
support his argument that the government has the burden of showing
the fraud is willful by clear and convincing evidence. Because
Pérez Batres does not raise this argument on appeal, we do not
evaluate it.



                                      - 4 -
does not claim that he made his estoppel argument to the BIA or

that the exhaustion requirement does not apply to his case.2

              Pérez     Batres's     equitable   estoppel   argument    contains

three       elements:    (1)   The    government    engaged     in   affirmative

misconduct by failing to confiscate his LPR card and by allowing

him to travel in and out of the United States approximately 70

times; (2) the government caused him to have a reasonable belief

that his LPR card was valid; and, (3) he detrimentally relied on

this belief.       See Costa v. INS, 233 F.3d 31, 38 (1st Cir. 2000)

(explaining the three elements of an equitable estoppel claim).

The first and third elements are missing from his argument to the

BIA, and the second element was used to advance an entirely

different argument.

              First, Pérez Batres never described the government's

actions as affirmative misconduct to the BIA.                 Pérez Batres said

only that the government failed to confiscate his LPR card and

admitted him to the United States. See Dantran, Inc. v. U.S. Dep't

of Labor, 171 F.3d 58, 67 (1st Cir. 1999) ("It is common ground

that affirmative misconduct requires something more than simple

negligence . . . .").          Second, while Pérez Batres's argument to




        2
       The BIA also did not address the issue of equitable estoppel
in its decision. See Meng Hua Wan v. Holder, 776 F.3d 52, 56 (1st
Cir. 2015) ("The exhaustion requirement is satisfied where . . .
the agency chooses to address the merits of a particular issue,
regardless of whether the alien raised that issue.").


                                          - 5 -
the BIA and his petition to this court both discuss his purported

mistaken belief in the validity of his LPR status, they do so for

entirely different purposes -- to the BIA to prove he lacked any

intent to deceive, and in his petition to this court to contend

the government is estopped from bringing proceedings against him.

Third, Pérez Batres never argued detrimental reliance before the

BIA.3

             "Because [Pérez Batres] did not raise [his equitable

estoppel] claim before the BIA, we do not have jurisdiction to

review it here."       Paiz-Morales v. Lynch, No. 14-1182, ___ F.3d

___, 2015 WL 4560270, at *1 n.1 (1st Cir. July 29, 2015) (citing

Shah v. Holder, 758 F.3d 32, 37 (1st Cir. 2014)).            INA § 242(d)(1)

provides that "[a] court may review a final order of removal only

if . . . the alien has exhausted all administrative remedies

available to the alien as of right."             8 U.S.C. § 1252(d)(1).    "We

have interpreted this statute to mean that theories not advanced

before the BIA may not be surfaced for the first time in a petition

for     judicial   review   of   the   BIA's   final   order."   Makhoul    v.

Ashcroft, 387 F.3d 75, 80 (1st Cir. 2004). We apply the exhaustion

requirement "not only to claims omitted from an appeal to the BIA




        3
        Nor could he. See         Costa, 233 F.3d at 38 n.7 (explaining
that "in order for there to       be detrimental reliance, the aggrieved
party must show that he has       surrendered a right that he possessed"
(citing Heckler v. Cmty.           Health Servs., 467 U.S. 51, 61-62
(1984))).


                                         - 6 -
but also to claims that were insufficiently developed before the

BIA."      Sunoto v. Gonzales, 504 F.3d 56, 59 (1st Cir. 2007)

(internal citations and quotation marks omitted).

            The exhaustion requirement applies to equitable estoppel

claims raised for the first time on appeal.               See DeCosta v.

Gonzales, 449 F.3d 45, 49-50 (1st Cir. 2006) (declining to consider

the petitioner's equitable estoppel and equitable tolling claims

because she failed to raise them before the BIA); cf. Bowles v.

Russell, 551 U.S. 205, 214 (2007) ("[T]his Court has no authority

to       create    equitable     exceptions       to       jurisdictional

requirements . . . .").

            The Supreme Court's decision this past Term in Mata v.

Lynch, 135 S. Ct. 2150 (2015), does not change the outcome of this

case.     Mata involved a petition to review the BIA's denial as

untimely of a motion to reopen removal proceedings.          Id. at 2153-

54.     The Fifth Circuit -- breaking with every other circuit that

reviews removal orders -- declined to exercise jurisdiction.          Id.

at 2154.    The Supreme Court held that 8 U.S.C. § 1252(a)(1), which

gives courts of appeals jurisdiction to review final removal

orders, includes jurisdiction over motions to reopen that the BIA

denied as untimely.     Id. at 2154-55.      Mata did not involve the

provision    in   question   here,   8   U.S.C.   §    1252(d)(1),   which

specifically provides that courts can review final orders "only if

the alien has exhausted all administrative remedies," thereby


                                     - 7 -
depriving courts of jurisdiction to hear unexhausted claims.   See

Joumaa v. Gonzales, 446 F.3d 244, 246 (1st Cir. 2006).   Therefore,

Mata is inapposite to Pérez Batres's case, as he failed to exhaust

his equitable estoppel argument with the BIA.4

                                III.

            For the reasons stated above, we dismiss Pérez Batres's

petition.




     4  Nor does the Supreme Court's decision in United States v.
Kwai Fun Wong, 135 S. Ct. 1625 (2015), apply here. Kwai Fun Wong
involved interpretation of the Federal Tort Claims Act (FTCA).
Looking at the text, context, and legislative history of the FTCA,
the Court concluded that the statute of limitations was not
jurisdictional. Id. at 1632-33. Neither Kwai Fun Wong nor Mata
involved exhaustion.


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