     Case: 12-60310       Document: 00512144599         Page: 1     Date Filed: 02/15/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         February 15, 2013
                                     No. 12-60310
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

ERNEST BANDA,

                                                  Petitioner

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

                                                  Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A097 678 535


Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
       Ernest Banda, a native and citizen of Zambia, petitions this court for
review of the order of the Board of Immigration Appeals (BIA) denying his
motion to reopen and reconsider. Banda argues that the BIA should have
reconsidered its dismissal of his appeal and reopened the proceedings based on
his newly approved I-360 petition so that he could apply for an adjustment of
status. He states that the Government alleges that he claimed false citizenship
on his 2003 employment form when he checked the box indicating that he was

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 12-60310

a United States national and argues that a false claim to be a United States
national does not constitute a violation of 18 U.S.C. § 911. Banda concedes that
he made a false claim to citizenship “resulting from pressure from an abusive
U.S. Citizen spouse.” He argues, however, that lying about citizenship on a lease
application to escape an abusive spouse does not constitute a “purpose or benefit”
under the Immigration and Nationality Act (INA).
      “This Court must examine the basis of its jurisdiction, on its own motion,
if necessary.” Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). The Illegal
Immigration Reform and Immigrant Responsibility Act affords this court
jurisdiction over Banda’s request for review only if he has “exhausted all
administrative remedies available to [him] as of right” on these issues. 8 U.S.C.
§ 1252(d)(1). “A remedy is available as of right if (1) the petitioner could have
argued the claim before the BIA, and (2) the BIA has adequate mechanisms to
address and remedy such a claim.” Omari v. Holder, 562 F.3d 314, 318S19 (5th
Cir. 2009).   That “the BIA had sufficient notice of¯and opportunities to
address¯the issues” presented is not sufficient to give this court jurisdiction. Id.
at 321. An alien meets the exhaustion requirement only if he has “explicitly”
raised an issue before the BIA on direct appeal, a motion to reopen, or a motion
for reconsideration. Id. at 320S21.
      Banda did not argue to the BIA that falsely claiming to be a national of the
United States did not constitute falsely claiming United States citizenship or
that claiming citizenship on a lease application did not constitute doing so for a
purpose or benefit under the INA. Moreover, these arguments could have been
presented to the BIA in his motion to reopen and for reconsideration, and the
BIA had adequate mechanisms to address and remedy these types of errors. See
Omari, 562 F.3d at 319S21. Consequently, the court is without jurisdiction to
address whether the BIA abused its discretion when it denied Banda’s motion
on the basis that he was inadmissible under 8 U.S.C. § 1182(a)(6)(C)(ii)(I).



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                                  No. 12-60310

Banda’s petition for review is DISMISSED for lack of jurisdiction. See id. at 325;
§ 1252(d)(1).




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