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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Banda’s petition for review is DISMISSED for lack of jurisdiction. See id. at 325;
§ 1252(d)(1).
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