Omari v. Holder

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

FILED
March 4, 2009

No. 07-60814 Charles R. Fulbruge III
Clerk

JOHN NYAKUNDI OMARI

Petitioner
v.

ERIC H HOLDER, JR, U S ATTORNEY GENERAL

Respondent

Petition for Review of an Order of the
Board of Immigration Appeals

Before GARWOOD, DENNIS, and PRADO, Circuit Judges.
PRADO, Circuit Judge:
An Immigration Judge found Petitioner John Nyakundi Omari removable,
but granted him a discretionary cancellation of removal. The Government
appealed this decision to the Board of Immigration Appeals, which reversed the
IJ and ordered Omari removed to Kenya. Omari now petitions this court to
vacate the BIA’s order on four separate grounds. But Omari has never properly
presented any of the issues he now raises to the BIA, despite the opportunity to
do so. As 8 U.S.C. § 1252(d) requires that a petitioner exhaust all administrative
remedies available as of right for this court to have jurisdiction over an issue,
Omari’s failure to raise these issues before the BIA jurisdictionally bars us from
addressing them.
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Ordinarily, such a failure to raise an issue before the BIA would end our
inquiry. But Omari makes two arguments that warrant consideration. First,
he asserts that he effectively—if not explicitly—raised all pertinent issues before
the BIA, such that the BIA had adequate notice to satisfy exhaustion. Second,
Omari alternatively asks that we excuse his failure to exhaust. We find both
arguments unavailing; allowance of “effective” exhaustion runs contrary to the
purposes of § 1252(d), and, at least after the Supreme Court’s decision in Bowles
v. Russell, 127 S. Ct. 2360, 2364–66 (2007), we do not have the authority to
excuse Omari’s failure to comply with a statutory jurisdictional mandate.
We therefore dismiss Omari’s petition for lack of jurisdiction. As our
decision turns on a procedural stumble committed in his second appeal to the
BIA, we set forth the history of Omari’s case in some detail.
I. FACTUAL AND PROCEDURAL BACKGROUND
Omari came to the United States as a student in 1986 and soon became a
lawful permanent resident. He later pleaded guilty to two unrelated criminal
offenses: a Minnesota misdemeanor charge of fifth-degree assault (the
“Minnesota assault conviction”) and a federal charge of conspiracy to transport
stolen goods in interstate commerce (the “federal conspiracy conviction”). The
Government began removal proceedings against Omari and issued him a Notice
to Appear, eventually asserting three separate grounds for removal: (1) his
federal conspiracy conviction was an aggravated felony, see 8 U.S.C.
§ 1227(a)(2)(A)(iii); (2) his Minnesota assault conviction was a crime of domestic
violence, see 8 U.S.C. § 1227(a)(2)(E)(i); and (3) both his Minnesota assault and
federal conspiracy convictions were crimes involving moral turpitude, see 8
U.S.C. § 1227(a)(2)(A)(ii). Omari contested his removability and also applied for
cancellation of removal. See 8 U.S.C. § 1229b(a). An IJ found Omari removable
on the ground that his federal conspiracy conviction constituted an aggravated
felony and did not address the other grounds for removal or Omari’s request for

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cancellation. The BIA later affirmed the IJ’s decision.
Omari petitioned this court to review the BIA’s order. Finding that the
record did not establish that Omari had committed an aggravated felony, we
vacated the BIA’s order and remanded the case for further proceedings. See
Omari v. Gonzales, 419 F.3d 303, 309–10 (5th Cir. 2005) (Omari I).
On remand, the IJ still found Omari removable but ultimately determined
that he merited cancellation of removal. The IJ first concluded that, despite the
additional evidence the Government had introduced on remand, Omari still had
not been convicted of an aggravated felony. The IJ instead found Omari
removable as an alien convicted of a crime of domestic violence and,
alternatively, as an alien convicted of two or more crimes involving moral
turpitude. Turning to Omari’s application for cancellation of removal, however,
the IJ weighed the equities and concluded that Omari merited cancellation.
The Government appealed the IJ’s decision to the BIA, disputing the IJ’s
determination that Omari had not been convicted of an aggravated felony as well
as the IJ’s discretionary grant of cancellation. Omari did not file an appeal from
the IJ’s decision, but he did file a response brief that similarly focused on the
aggravated felony and cancellation issues. The BIA agreed with the IJ that
Omari had not been convicted of an aggravated felony but reversed the IJ’s
conclusion that Omari merited cancellation of removal. The BIA determined
that the equities did not weigh in Omari’s favor and noted a potential child
support arrearage of $10,000. The BIA thus vacated the IJ’s decision, denied
Omari’s application for cancellation of removal, and remanded the case to the IJ
for entry of an order of removal.
Omari moved the BIA to reconsider its decision. See 8 C.F.R. § 1003.2(b).
In his motion for reconsideration, Omari argued, inter alia, that (1) he was not
removable because his Minnesota assault conviction was neither a crime of
domestic violence nor a crime involving moral turpitude, (2) the BIA had

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erroneously found him to owe $10,000 in unpaid child support, and (3) the BIA
failed to give proper weight to factors meriting discretionary cancellation of
removal. The BIA denied this motion. It first noted that Omari had failed to
address his Minnesota assault conviction on appeal and could not do so for the
first time in a motion for reconsideration. Second, the BIA refused to consider
new evidence concerning Omari’s child support obligations, noting that a motion
for reconsideration was not the proper avenue for addressing new evidence.
Third, the BIA concluded that Omari provided no reasons for reversing its
determination that he did not merit cancellation. Finally, insofar as Omari’s
motion could be considered one to reopen based on evidence of his actual child
support obligations, see 8 C.F.R. § 1003.2(c), the BIA found that Omari had failed
to show that this evidence was previously unavailable or that it demonstrated
a reasonable likelihood of success on the merits. The BIA thus ordered Omari
removed to Kenya.
Omari now petitions this court to vacate the BIA’s order of removal.
Omari raises four arguments on appeal: (1) his Minnesota assault conviction is
neither a crime of domestic violence nor a crime involving moral turpitude,
(2) his federal conspiracy conviction is not a crime involving moral turpitude,
(3) the BIA engaged in impermissible factfinding, and (4) the court should
remand the case for a determination of whether he is eligible for waiver of
removal under 8 U.S.C. § 1182(h).
II. JURISDICTION
A. Actual Exhaustion
As always, we have jurisdiction to determine our own jurisdiction. Omari
I, 419 F.3d at 306. And although we generally have jurisdiction to review final
orders of removal, 8 U.S.C. § 1252(a)(1), under 8 U.S.C. § 1252(d), we “may
review a final order of removal only if . . . the alien has exhausted all
administrative remedies available to the alien as of right.” Petitioners fail to

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exhaust their administrative remedies as to an issue if they do not first raise the
issue before the BIA, either on direct appeal or in a motion to reopen. See
Heaven v. Gonzales, 473 F.3d 167, 177 (5th Cir. 2006); Wang v. Ashcroft, 260
F.3d 448, 452–53 (5th Cir. 2001). This exhaustion requirement applies to all
issues for which an administrative remedy is available to a petitioner “as of
right.” Arce-Vences v. Mukasey, 512 F.3d 167, 172 (5th Cir. 2007). 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. See Toledo-Hernandez v. Mukasey, 521 F.3d 332, 334 (5th Cir. 2008);
Falek v. Gonzales, 475 F.3d 285, 291 (5th Cir. 2007). Since exhaustion in this
context is a statutory (rather than prudential) mandate, failure to exhaust an
issue deprives this court of jurisdiction over that issue. Wang, 260 F.3d at 452;
see also Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004) (per curiam).
1. Minnesota Assault Conviction
Omari did not appeal the IJ’s determination that his Minnesota assault
conviction was a crime of domestic violence and a crime involving moral
turpitude. Moreover, Omari did not challenge this determination in his brief
before the BIA. His failure to do so is a failure to exhaust, jurisdictionally
barring us from addressing the merits.
Granted, Omari did raise the issues regarding his Minnesota assault
conviction in his motion for reconsideration, but we find this insufficient to
satisfy § 1252(d). “A motion to reconsider challenges the [BIA]’s original decision
and alleges that it is defective in some regard.” In re O-S-G, 24 I. & N. Dec. 56,
57 (BIA 2006); see also 8 C.F.R. § 1003.2(b)(1) (“A motion to reconsider shall
state the reasons for the motion by specifying the errors of fact or law in the
prior [BIA] decision . . . .”). A motion for reconsideration is thus confined to the
substance of the BIA’s original decision. It is not the proper avenue for raising
new issues or arguments, and “[a] motion to reconsider based on a legal

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argument that could have been raised earlier in the proceedings will be denied.”
O-S-G, 24 I. & N. Dec. at 58. Instead, the party bringing a motion for
reconsideration “must specify the factual and legal issues raised on appeal that
were decided in error or overlooked in [the BIA’s] initial decision.” Id. (emphasis
added). In short, an issue raised for the first time in a motion for
reconsideration that could have been raised earlier has not been properly
presented to the BIA. We therefore hold that improperly raising an issue for the
first time in a motion for reconsideration does not satisfy § 1252(d)’s exhaustion
requirement.
Because Omari did not initially raise any issues regarding his Minnesota
assault conviction in his brief to the BIA and the BIA did not address them in its
order, Omari’s arguments regarding his Minnesota assault conviction were not
the proper subject of a motion for reconsideration. As such, they were never
properly raised before the BIA. Omari has therefore failed to exhaust his
administrative remedies as to these issues, and § 1252(d) jurisdictionally bars
us from addressing them.
2. Federal Conspiracy Conviction
Similarly, Omari neither appealed nor briefed the IJ’s conclusion that his
federal conspiracy conviction was a crime involving moral turpitude. Indeed,
Omari never addressed this issue—even improperly—before the BIA. Omari has
therefore failed to exhaust his administrative remedies as to this issue, and
§ 1252(d) jurisdictionally bars us from addressing it.
3. Cancellation
Omari contends that, in overturning the IJ’s grant of cancellation of
removal, the BIA committed legal error by making its own factual findings
instead of properly deferring to those of the IJ. As this argument alleges a legal
error in the BIA’s decision, Omari necessarily did not address this issue in his
initial brief to the BIA. Still, Omari raises this issue for the first time before this

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court, and the BIA has never had the chance to address it. This court and others
have previously held (albeit in unpublished decisions) that certain allegations
of BIA error must first be brought to the BIA in a motion for reconsideration.
See Rivas de Williams v. Gonzales, 239 F. App’x 46, 48 (5th Cir. 2007) (per
curiam); Manan v. Gonzales, 131 F. App’x 12, 15 (3d Cir. 2005). Of particular
relevance, the Tenth Circuit has held that allegations of impermissible
factfinding by the BIA must first be brought before the BIA in a motion for
reconsideration to satisfy exhaustion. See Sidabutar v. Gonzales, 503 F.3d 1116,
1122 (10th Cir. 2007). Along these lines, Omari could have brought his
allegation of impermissible factfinding before the BIA in his motion for
reconsideration, and we conclude that his failure to do so constitutes a failure to
exhaust the issue.
This holding comports with our decisions on the necessity of raising new
claims in a motion to reopen. We have “previously held that when a petitioner
seeks to raise a claim not presented to the BIA and the claim is one that the BIA
has adequate mechanisms to address and remedy, the petitioner must raise the
issue in a motion to reopen prior to resorting to review by the courts.” Toledo-
Hernandez, 521 F.3d at 334 (quotation marks and alteration omitted); see also
Roy, 389 F.3d at 137; Wang, 260 F.3d at 453; Goonsuwan v. Ashcroft, 252 F.3d
383, 388 (5th Cir. 2001). In Toledo-Hernandez, for example, the petitioner
asserted for the first time before this court that the vacatur of his criminal
conviction mandated the vacatur of his order of removal. 521 F.3d at 334. The
petitioner explained that he never asked for such relief before the BIA because
the vacatur of his criminal conviction occurred beyond the time in which he could
file a motion to reopen. Id. We recognized that, because any resort to the BIA
would have been untimely, the only way that the BIA could address the
petitioner’s new claim would be through an exercise of its sua sponte authority
to reopen a case for exceptional circumstances. Id. at 335. We also

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acknowledged that a motion to reopen was not generally required to satisfy
§ 1252(d). Id. at 336. But we held that the BIA’s sua sponte authority was an
available and adequate mechanism for the BIA to first address the petitioner’s
claim. Id. As such—and despite the seeming-contradiction of asking the BIA to
act sua sponte, see Wang, 260 F.3d at 453—we required that a petitioner first
present an issue to the BIA through a motion to reopen for exceptional
circumstances for that issue to be exhausted, Toledo-Hernandez, 521 F.3d at 336.
The same reasoning applies to motions for reconsideration. A motion for
reconsideration specifies the errors of fact or law in a prior decision. See 8 C.F.R.
§ 1003.2(b)(1). Such a motion is an available and adequate mechanism for the
petitioner to argue, and the BIA to correct, any errors that arise in a BIA
decision. This is not to say that a motion for reconsideration is generally
required for exhaustion; if a party disagrees with the BIA’s resolution of an issue
previously raised before the BIA, there is no need to reargue this issue in a
motion for reconsideration. But where the BIA’s decision itself results in a new
issue and the BIA has an available and adequate means for addressing that
issue, a party must first bring it to the BIA’s attention through a motion for
reconsideration.
The issue Omari now raises regarding the BIA’s decision illustrates the
reasons for this requirement. Omari asserts that the BIA contravened its own
regulations by engaging in impermissible factfinding when denying his request
for cancellation of removal. He thus asserts that the BIA committed a legal
error in its decision. This error involves an issue stemming from the BIA’s act
of decisionmaking, and was one that neither party could have possibly raised
prior to the BIA’s decision. But after the BIA issued its decision, Omari could
have argued to the BIA that it had engaged in impermissible factfinding in his
motion for reconsideration. In other words, Omari had an available and
adequate means of presenting this argument to the BIA before bringing it to this

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court, and § 1252(d) requires that he avail himself of it. If the BIA had found
Omari’s argument meritorious, it could have corrected this error. Yet Omari did
not make this argument in his motion for reconsideration. Although he did
argue that the BIA erred in finding that he owed more than $10,000 in child
support, this argument challenged only the record support for the finding and
not the act of factfinding itself. Thus, Omari never raised the issue of
impermissible factfinding before the BIA. Because Omari has failed to exhaust
his administrative remedies as to this issue, § 1252(d) jurisdictionally bars us
from addressing it.
4. Waiver of Removal Under 8 U.S.C. § 1182(h)
Omari seeks, as an alternative form of relief, to have this case remanded
for consideration of his claim that he should be granted a waiver of
inadmissibility under 8 U.S.C. § 1182(h). Omari did not raise this issue before
the BIA in his brief or motion for reconsideration. Again, Omari failed to
exhaust this issue and we therefore lack jurisdiction to address it.
B. Effective Exhaustion
Omari asserts that, despite the lack of any explicit mentioning of the
present issues to the BIA, he effectively exhausted his claims. He argues that
the issues he briefed before and discussed with the IJ and the BIA were
sufficient to give the BIA adequate notice that he disputed the grounds of
removability. Moreover, Omari contends that some of the issues he now raises
overlap with one he did address in his brief to the BIA, namely, the argument
that his federal conspiracy conviction was not an aggravated felony. Omari thus
suggests that, even if he did not explicitly state his contention with all of the
alternative grounds upon which the IJ eventually found him removable, the BIA
had sufficient notice of—and opportunities to address—the issues he now raises.
We disagree, and take this opportunity to emphasize that parties must
fairly present an issue to the BIA to satisfy § 1252(d)’s exhaustion requirement.

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Such a requirement has been an implicit necessity of our prior decisions.
Though rarely a point of emphasis, our cases on § 1252(d) have continually
stated that a petitioner must “raise,” “present,” or “mention” an issue to the BIA
to satisfy exhaustion. See, e.g., Toledo-Hernandez, 521 F.3d at 335; Heaven, 473
F.3d at 177; Roy, 389 F.3d at 137; Wang, 260 F.3d at 452–53; Goonsuwan, 252
F.3d at 388. Implicit in these repeated statements is the suggestion that
§ 1252(d) requires some affirmative action on the part of a party. Such a reading
is reinforced by those marginal cases where the sufficiency of raising an issue
has been contested. In Carranza-de Salinas v. Gonzales, 477 F.3d 200, 206–07
(5th Cir. 2007), for example, we held that a petitioner sufficiently exhausted an
issue by presenting it in a less-developed form to the BIA. Similarly, in Burke
v. Mukasey, 509 F.3d 695, 696 (5th Cir. 2007) (per curiam), we held that a pro
se petitioner’s general argument to the BIA—that his conviction for possession
of stolen property was not an aggravated felony—embraced the slightly more
specific question of whether his conviction was a “theft offense.” And in Hongyok
v. Gonzales, 492 F.3d 547, 550 (5th Cir. 2007), we held that a semantic difference
in the framing of an issue before this court and before the BIA did not raise any
significant question of whether the issue was exhausted. In these cases, the
petitioners made some concrete statement before the BIA to which they could
reasonably tie their claims before this court. Omari, in contrast, has not. His
failure to fairly present the issues he now brings on appeal constitutes a failure
to exhaust.
Such a requirement is not needlessly technical or formalistic. Indeed,
requiring the fair presentation of a contested issue is sound policy. First,
requiring actual (as opposed to effective) exhaustion allows for efficient
adjudication of immigration claims. One of the purposes of § 1252(d)’s
exhaustion requirement is to provide the BIA, the agency with the expertise in
immigration matters, with the opportunity to address immigration issues in the

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first instance. See Toledo-Hernandez, 521 F.3d at 334; Zhang v. Ashcroft, 388
F.3d 713, 721 (9th Cir. 2004) (per curiam). An essential aspect of this purpose
is providing the BIA with adequate notice of those issues it should address. See
Figueroa v. Mukasey, 543 F.3d 487, 492 (9th Cir. 2008); Zhang, 388 F.3d at 721;
Zara v. Ashcroft, 383 F.3d 927, 931 (9th Cir. 2004). Accepting Omari’s claims of
effective exhaustion would shift some of the burden of identifying contested
issues from the parties to the BIA. And requiring the BIA to divine from the
record all potentially-disputed issues would place a significant burden on the
agency. Perhaps wary of leaving any issue unaddressed, the BIA might waste
resources combing a petitioner’s file and addressing issues that the parties had
accepted as lost. The parties are in a better position than the BIA to identify all
issues that they contest, and placing the burden of raising those issues on the
parties provides an appropriate incentive.
Further, the fact that Omari raised some of these issues before the IJ but
not the BIA is inadequate to satisfy § 1252(d)’s exhaustion requirement, as is the
fact that he ultimately prevailed before the IJ. The IJ determined that Omari
was removable as a threshold matter but then granted a discretionary
cancellation of removal. We should neither expect nor desire that Omari appeal
the IJ’s threshold adverse determinations in spite of his ultimate victory. But
after the government appealed the case to the BIA, Omari could have addressed
these threshold issues in his brief. Omari’s ultimate victory before the IJ did not
alter the IJ’s underlying conclusion that he was removable, and Omari should
have realized that he was still subject to removal if the BIA reversed the IJ’s
discretionary grant of cancellation. We could view this situation through the
legal fiction that Omari effectively conceded the correctness of the IJ’s
conclusions on these issues when he failed to contest them before the BIA.
Perhaps more realistically, neither the parties nor the BIA are likely to have
thought about addressing these underlying issues of removability. The question

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thus becomes one of how best to give notice to the BIA that it should address a
particular issue. Again, the more efficient way of doing this is placing the onus
of raising issues on the parties.
Thus, in the interests of efficient adjudication, we refuse to saddle the BIA
with the burden of identifying the substance of an immigration appeal. This is
not to preclude the BIA from raising issues that the parties have seemingly
abandoned, and should the BIA choose to do so, our exhaustion inquiry might be
much different. See Lin v. Attorney Gen., 543 F.3d 114, 122–26 (3d Cir. 2008)
(discussing the circuit split on this issue). But claims that parties have
effectively placed the BIA on notice that they contest an issue, even though they
never actually stated as much to the BIA, have no place in our § 1252(d)
exhaustion analysis. Instead, parties must fairly present their contentions to
the BIA to satisfy exhaustion.
We note parenthetically that we expressly decline to address the specific
question of how extensively a petitioner must raise an issue to satisfy § 1252(d).
As much as we would like to provide guidance on this issue, Omari’s case does
not present sufficient facts that would adequately frame it for decision.
C. Excusing Exhaustion
Alternatively, Omari asks this court to excuse his failure to exhaust. He
first suggests that our jurisdiction over legal and constitutional issues in the
immigration context necessarily extends to the issues he now raises on appeal.
Omari also attempts to invoke purported “exceptions” to § 1252(d)’s exhaustion
requirement. Finally, Omari suggests that equity warrants excusing his failure
to exhaust. We find each of these claims unavailing.
Omari first asserts that this court has jurisdiction over issues concerning
his removability because review of the BIA’s decision includes review of all
factual and legal conclusions on which the order is contingent, including the
asserted grounds for deportation. But this cannot be correct, for such an

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interpretation of our jurisdiction would nullify § 1252(d)’s exhaustion
requirement. That is, inherent jurisdiction over all legal issues underlying a
BIA order would mean that a party’s failure to exhaust these issues before the
BIA would never bar this court from addressing them. Omari’s suggestion of
plenary and unconstrained appellate review in this court simply cannot coexist
with § 1252(d)’s exhaustion requirement. And as Congress did not give us a
general grant of jurisdiction over immigration appeals—much less the suggested
plenary review—the fact that issues of Omari’s removability underlie the BIA’s
order in no way excuses the necessity of exhaustion.
Omari’s invocation of purported “exceptions” to § 1252(d) is similarly
inapposite. Granted, we have sometimes spoken of “exceptions” to § 1252(d)’s
exhaustion requirement. In Goonsuwan, for example, we stated, “Even when
exhaustion is a jurisdictional bar, this Court recognizes an exception ‘when
administrative remedies are inadequate.’” 252 F.3d at 389 (quoting Ramirez-
Osorio v. INS, 745 F.2d 937, 939 (5th Cir. 1984)). Later cases have emphasized,
however, that for a remedy to be available “as of right” and thus fall under
§ 1252(d)’s exhaustion requirement, the BIA must have adequate mechanisms
to address and remedy the claim. See, e.g., Toledo-Hernandez, 521 F.3d at 334;
Arce-Vences, 512 F.3d at 172. These “exceptions” to § 1252(d), then, are more
appropriately characterized as situations in which § 1252(d)’s exhaustion
requirement does not even apply because the particular relief is not available as
of right.
This construction of § 1252(d) indicates that all of the issues Omari now
raises fall squarely within its exhaustion requirement. The BIA had adequate
mechanisms to address and remedy all of these issues. Moreover, Omari had a
full and fair opportunity to present each of these issues to the BIA before raising
them in his present petition. And there is no evidence of bias against Omari nor
any indication that the BIA would not have fairly considered his claims. In

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short, Omari could have made all of his present arguments to the BIA before
petitioning this court for review. He did not, and his failure to do so is a failure
to exhaust.
Finally, Omari has given us no reason to equitably excuse the exhaustion
requirement. His failure to exhaust was not due to any third party’s conduct or
external circumstance. It was instead solely of his own doing, and none of our
prior decisions would mandate excusing his failure to exhaust. In any event, we
lack the authority to fashion a general equitable exception to § 1252(d)’s
exhaustion requirement. In its recent decision in Bowles v. Russell, 127 S. Ct.
2360, 2364–66 (2007), the Supreme Court emphasized that there is a distinction
between preconditions to appeal that are simply mandatory and those that are
mandatory and jurisdictional. The former are those created by court rule or
judicial decision, while the latter stem from jurisdictional limitations that
Congress has statutorily created. Id. at 2365; see also United States v. Martinez,
496 F.3d 387, 388–89 (5th Cir.) (per curiam), cert denied, 128 S. Ct. 728 (2007).
Thus, the Bowles Court held that Federal Rule of Appellate Procedure 4(a)(6)’s
limit on reopening the time for filing a notice of appeal was a mandatory and
jurisdictional requirement because it implemented 28 U.S.C. § 2107(c). 127 S.
Ct. at 2363. Failure to comply with the statutory requirement embodied in Rule
4(a)(6), then, deprives a court of jurisdiction. Id. at 2366. In line with Bowles,
we have held that Federal Rule of Appellate Procedure 4(b)(1)(A)’s time limit for
filing notices of appeal in criminal cases is mandatory, but not jurisdictional,
because it does not effectuate a statutorily-imposed limit. Martinez, 496 F.3d at
388–89.
The distinction between those requirements that are mandatory and those
that are mandatory and jurisdictional is important because, according to the
Bowles Court, we have “no authority to create equitable exceptions to
jurisdictional requirements.” 127 S. Ct. at 2366. While we can invoke doctrines

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such as waiver or equitable excuse when a party fails to comply with judicially-
created prudential preconditions to appeal, we cannot create our own exceptions
to a jurisdictional bar that Congress—within the bounds of its constitutional
authority—has explicitly set out in a statute.
Three circuits have recently examined § 1252(d) in light of Bowles. In
Grullon v. Mukasey, 509 F.3d 107, 114 (2d Cir. 2007), cert denied, 129 S. Ct. 43
(2008), a petitioner asked the Second Circuit to excuse his failure to exhaust in
light of the “manifest injustice” that would stem from dismissal. Though
recognizing the potential merits of the petitioner’s request, the court held that
there was “no ‘manifest injustice’ exception to § 1252(d)’s exhaustion
requirement” after Bowles. Id. at 115. According to the Second Circuit, “Bowles
broadly disclaims the authority of the federal courts to create equitable
exceptions to jurisdictional requirements.” Id. at 116 (quotation marks omitted).
Similarly, in Bah v. Mukasey, 521 F.3d 857, 859 (8th Cir. 2008), the Eighth
Circuit relied on Bowles in refusing to create a futility exception to § 1252(d).
And in Massis v. Mukasey, 549 F.3d 631, 640 (4th Cir. 2008), the Fourth Circuit
invoked Bowles in holding that there was no “miscarriage of justice” exception
to § 1252(d). According to these circuits, courts cannot “create an equitable
exception to [§ 1252(d)]’s exhaustion requirement.” Id.
We agree, and hold that we lack the authority to equitably excuse a party’s
failure to satisfy § 1252(d)’s exhaustion requirement. For this court to have
jurisdiction over an issue that the BIA has adequate means of addressing, a
petitioner must adequately raise that issue before the BIA. So long as it remains
a statutory jurisdictional bar without any allowance of exceptions, compliance
with § 1252(d) is necessary. We therefore have no authority to excuse Omari’s
failure to exhaust.
We recognize that our ruling imposes a strict exhaustion requirement on
those petitioning this court to review a BIA order. We could brush off any

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concerns over this strictness by noting, as the Supreme Court did in Bowles, that
“[i]f rigorous rules like the one applied today are thought to be inequitable,
Congress may authorize courts to promulgate rules that excuse compliance.”
127 S. Ct. at 2367. But we think it better to suggest that such a construction
makes sound jurisdictional sense. Our ruling should increase the likelihood that
claims will be adequately addressed at the administrative level, rendering resort
to this court unnecessary. In those cases that do come to our court, the
arguments will likely be better refined in light of their presentation to and
resolution by the BIA. And perhaps most importantly, today’s ruling provides
clear guidance to those proceeding before the BIA of the necessity of exhaustion,
such that they will be able to avoid the pitfalls that prevent us from addressing
the merits of the present petition.
III. CONCLUSION
Regarding the issues that he now petitions this court to address, Omari
has failed to exhaust all administrative remedies available to him as of right.
Because this failure to exhaust deprives this court of jurisdiction, we DISMISS
Omari’s petition for review.
DISMISSED.

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