DLD-333                                                           NOT PRECEDENTIAL

                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT
                                    ___________

                                         No. 16-1184
                                         ___________

                       JUAN RAMIRES FERNANDEZ FERNANDEZ,
                    a/k/a ANDRES MADERA ALBERTO FERNANDEZ,
                      a/k/a ADALBERTO FERNANDEZ FERNANDEZ,

                                                                    Petitioner

                                               v.

                 ATTORNEY GENERAL UNITED STATES OF AMERICA
                      ____________________________________

                         On Petition for Review of an Order of the
                               Board of Immigration Appeals
                                (Agency No. A056 181 829)
                      Immigration Judge: Honorable Rosalind K. Malloy
                        ____________________________________

                       Submitted on Respondent’s Motion for Dismissal
                         for Lack of Jurisdiction or Summary Action
                      Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                         July 7, 2016

           Before: CHAGARES, GREENAWAY, JR., and GARTH, Circuit Judges

                                 (Opinion filed: July 22, 2016)
                                          _________

                                           OPINION*
                                           _________

PER CURIAM


*
    This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
       Juan Ramires Fernandez Fernandez, a native and citizen of the Dominican

Republic, petitions for review of an order of the Board of Immigration Appeals (“BIA”).

We will dismiss the petition in part and deny it in part.

       Fernandez attempted to enter the United States in December 2000, but was

removed using expedited removal procedures under § 235(b)(1) of the Immigration and

Nationality Act (“INA”) [8 U.S.C. § 1225(b)(1)], because he did not have proper

documents (the biographical page in the passport he was using did not appear to be

genuine). The “Notice to Alien Ordered Removed” provided that Fernandez was

prohibited from entering the United States for five years. A.R. 501. In November 2002,

he was admitted to the United States as an immigrant spouse of a lawful permanent

resident, having noted on his visa application that he had never been refused admission to

the United States at a port of entry. A.R. 498.

       Fernandez appeared for a naturalization interview in April 2009. On his N-400

naturalization application, he indicated that he had never “lied to any U.S. government

official to gain entry or admission into the United States,” see A.R. 481, and that he had

never “been removed, excluded, or deported from the United States,” see A.R. 482.

Although he had used a different alien number and different name when he attempted to

enter the United States in 2000, a fingerprint match identified him as the person who had

made that attempt. Fernandez’s N-400 was denied, and he was placed in removal

proceedings. After amendment, the final charges asserted that he was removable


constitute binding precedent.                 2
pursuant to: (1) INA § 237(a)(1)(A) [8 U.S.C. § 1227(a)(1)(A)] and INA §

212(a)(9)(A)(i) [8 U.S.C. § 1182(a)(9)(A)(i)]; i.e., that he was inadmissible because he

was seeking admission within five years of his previous removal without prior consent of

the Attorney General; and (2) INA § 237(a)(1)(A) [8 U.S.C. § 1227(a)(1)(A)] and INA

212(a)(6)(C)(i) [8 U.S.C. § 1182(a)(6)(C)(i)]; i.e., that he was inadmissible because he

sought to procure, or had procured, a visa or other immigration benefit by fraud or by

willfully misrepresenting a material fact.

       Fernandez, represented by counsel, argued that the Government had the burden to

show that his misrepresentations were willful. He argued that it was not clear that he

understood that the expedited proceeding was really a removal, and that it was not clear

that he understood English well enough, or that he understood the legal concepts of

deportation, removal, and exclusion at the time of the naturalization interview. After

hearing testimony from the officer who had conducted Fernandez’s naturalization

interview (who did not specifically remember the interview, but testified as to his

practice), the IJ found sufficient evidence to sustain the charges of removability. The IJ

denied Fernandez’s sole application for relief (permission to reapply for admission), as he

could not simultaneously receive a waiver under INA § 237(a)(1)(H) [8 U.S.C. §

1227(a)(1)(H)] (waiver for certain misrepresentations) and reapply for admission

pursuant to agency law.1 Fernandez appealed to the BIA, raising the same arguments that


1
 The IJ cited In re Garcia, 21 I. & N. Dec. 254 (BIA 1996); In re Roman, 19 I. & N. Dec.
855 (BIA 1988); and In re Sosa-Hernandez, 20 I. & N. Dec. 758 (BIA 1993).
                                             3
he had raised before the IJ. The BIA dismissed his appeal.

         Fernandez filed a timely petition for review, represented by new counsel.

Fernandez’s brief does not raise the arguments he pursued before the agency; rather, it is

devoted to the argument that the Government was time-barred from commencing any

removal action against him, pursuant to INA § 246(a) [8 U.S.C. § 1256(a)].2 He argues

in the alternative that if § 246(a) is interpreted to exclude persons such as himself who

completed consular processing rather than adjusting status in the United States, then his

equal protection rights were violated by application of that statute. Fernandez did not

raise these issues before the agency. He states that he did not do so because his former

attorney was ineffective.

         The Government has filed a motion to dismiss, arguing that because Fernandez did

not raise his claims before the agency, we lack jurisdiction to consider his petition for

review. The Government argues, in the alternative, that if we find we have jurisdiction to



2
    That section provides:

         If, at any time within five years after the status of a person has been
         otherwise adjusted under the provisions of section 1255 or 1259 of this title
         or any other provision of law to that of an alien lawfully admitted for
         permanent residence, it shall appear to the satisfaction of the Attorney
         General that the person was not in fact eligible for such adjustment of
         status, the Attorney General shall rescind the action taken granting an
         adjustment of status to such person and cancelling removal in the case of
         such person if that occurred and the person shall thereupon be subject to all
         provisions of this chapter to the same extent as if the adjustment of status
         had not been made.

                                               4
consider the equal protection argument, we should summarily deny the petition for

review as to that claim.

       We have jurisdiction, in general, to consider a timely petition for review of a final

order of removal. See 8 U.S.C. § 1252. The Government is correct that we only have

jurisdiction to consider those claims that the petitioner has raised before the BIA. Castro

v. Att’y Gen., 671 F.3d 356, 365 (3d Cir. 2012); see also 8 U.S.C. § 1252(d)(1) (court

may review final order of removal only if “alien has exhausted all administrative

remedies available to [him] as of right.”). And we cannot consider Fernandez’s excuse

that the claims were not raised due to ineffective assistance of counsel. As we explained

in an order denying his motion for a stay of removal, such a claim could be raised only in

connection with a motion to reopen filed with the BIA. See 8 C.F.R. § 1003.2; In re

Lozada, 19 I. & N. Dec. 637 (BIA 1988); see also Contreras v. Att’y Gen., 665 F.3d 578,

584-85 (3d Cir. 2012) (explaining requirements for ineffectiveness claim in immigration

context).

       The Government implies that we might have jurisdiction to consider Fernandez’s

equal protection claim, as the BIA has stated that it lacks jurisdiction to consider

“whether, on equal protection grounds, section 246(a) must be applied to aliens admitted

to the United States in lawful permanent resident status.” See In re Cruz De Ortiz, 25 I.

& N. Dec. 601, 605 (BIA 2011). We agree that we have jurisdiction to consider an

unexhausted claim when the BIA lacks jurisdiction to consider that claim. See


8 U.S.C. § 1256(a).                           5
Bonhometre v. Gonzales, 414 F.3d 442, 447-48 (3d Cir. 2005) (petitioner would be

excused from bringing constitutional claims to BIA if the BIA lacked jurisdiction to

consider them). But we summarily deny the petition to the extent Fernandez raises an

equal protection claim, as we find that the claim has no merit.

       In Malik v. Att’y Gen., 659 F.3d 253, 257 (3d Cir. 2011), we held that § 1256(a)

applies only to those who have adjusted status within the United States, not to those such

as Fernandez, who had consular processing abroad, as one who went through consular

processing has never gone through the “adjustment of status” process. See also Adams v.

Holder, 692 F.3d 91, 97 (2d Cir. 2012). Fernandez recognizes our holding,3 but argues

that applying § 1256(a)’s five-year limitation to those who adjusted status (we will call

them “Group A”), but not to those who underwent consular processing (“Group B”),

results in an equal protection violation. He argues that both groups of people are non-

citizen Lawful Permanent Residents (“LPRs”), and that treating them differently serves

“no legitimate government interest.” Pet. Br. at 14-15. We disagree.

       As Fernandez recognizes, our review is to determine whether the difference in

treatment has a rational basis. See DeSousa v. Reno, 190 F.3d 175, 184 (3d Cir. 1999).

Fernandez “has the burden of showing the irrationality of the classification drawn by the

statute.” United States v. Pollard, 326 F.3d 397, 407 (3d Cir. 2003). That burden

includes the responsibility of negating “every conceivable basis that might support the


3
  Fernandez disagrees with our holding, but we will not consider his arguments in that
regard since he did not exhaust his statutory interpretation argument before the BIA.
                                              6
classification.” Id. at 407-08 (internal quotation marks omitted). Further, we may

“hypothesize the motivations of the legislature” and “consider any conceivable legislative

purpose so long as it reasonably could have been entertained by the legislature.” Id. at

408; see also DeSousa, 190 F.3d at 184 (“Once a facially legitimate reason for the

classification is found, whether such a reason was articulated by Congress or not, we

must rule the classification constitutional.”).

       We find several rational bases for treating Groups A and B differently. First,

Congress may have determined that it wanted to hold to a higher standard those who

entered the United States as LPRs from the outset (Group B). Second, Congress may

have recognized that those in Group A “necessarily have some relationship with or

immigration status in this country, even if only one that declares their presence

unlawful.” Adams v. Holder, 692 F.3d 91, 98 (2d Cir. 2012). Congress may have

decided that it wanted to protect those relationships with this country. In contrast, those

in Group B may have had no direct relationship with the United States before entering

(fraudulently) as an LPR. Third, Congress may have treated those from Group B

differently because their visas are granted, and may be revoked, by the State Department,

rather than by the Attorney General. Because the two processes for receiving LPR status

are different, Congress may have decided that different proceedings were warranted for

removing or rescinding that status.

       For the foregoing reasons, we grant the Government’s motion to dismiss in part

and summarily affirm in remaining part. We will dismiss Fernandez’s statutory argument
                                                  7
for lack of jurisdiction, as he failed to exhaust his administrative remedies as to that

claim. And we will summarily deny the petition for review to the extent Fernandez raises

an equal protection claim.




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