Adil Muratoski petitions for review of a decision of the Board of Immigration Appeals (“BIA” or “Board”). The BIA denied Muratoski’s Motion to Reconsider its earlier decision dismissing his appeal of an Immigration Judge’s (“IJ”) decision. The IJ denied Muratoski’s application for cancellation of removal because he lacked good moral character. Because Muratoski did not preserve the issue he now asks us to review, we deny his petition.
I.
Adil Muratoski is a native and citizen of Macedonia who entered the United States in August 1986. Shortly thereafter, the former Immigration and Naturalization Service (“INS”) served Muratoski with an Order to Show Cause, commenced deportation proceedings against him, and charged him with being deportable from the United States as an alien who entered without inspection. During deportation proceedings held later that year, Muratoski admitted he was deportable as charged. He applied for asylum and withholding of deportation.
1
On May 4, 1987, an IJ entered an order finding Muratoski deportable and denying his applications for asylum and withholding of deportation. The IJ granted Muratoski the privilege of voluntary departure, with the warning that the voluntary departure would ripen into
Unbeknownst to the INS, Muratoski had been working another angle in his bid to stay in the United States. In September 1992, while his case was on appeal with the Board, he met an immigration attorney at a restaurant. The attorney, whose name Muratoski no longer recalls, offered to help Muratoski become a citizen for a $3500 fee. Muratoski paid the fee and signed papers prepared by his new lawyer. The attorney accompanied him to the post office where he applied for a United States passport using a falsified birth certifícate purporting that he had been born in Chicago. After his passport arrived in the mail, Muratoski continued to live in the United States for another thirteen or fourteen years without detection. During that time, he used the passport to depart and reenter the United States multiple times, even renewing the passport after it expired.
In December 2006, Immigration and Customs Enforcement (“ICE”) apprehended Muratoski at his home in Arlington Heights, Illinois. ICE officials served Muratoski with a Notice to Appear (“Notice”), placing him in removal proceedings. They later served him an amended Notice (“Amended Notice”) which charged new grounds of removability. The Amended Notice charged that Muratoski had been granted voluntary departure in 1992 but failed to voluntarily depart within the time allotted. It also charged that Muratoski effectively deported himself when he left the United States subsequent to his deportation. He then erroneously was admitted to the United States in 2002 based on the fraudulently obtained passport. The Amended Notice charged he was removable under 8 U.S.C. § 1227(a)(1)(A) because, at the time of his 2002 entry, he was inadmissible for making a false claim of citizenship, see 8 U.S.C. § 1182(a)(6)(C)(ii), and because he sought admission in 2002 after having been deported, see 8 U.S.C. § 1182(a)(9)(A)(ii). ICE also asserted that Muratoski was removable under 8 U.S.C. § 1227(a)(3)(D), as an alien who falsely represented himself to be a citizen. On February 15, 2007, Muratoski admitted the factual allegations against him in the Amended Notice and conceded removability. Five days later, as we will discuss below, he applied for cancellation of removal.
Continuing his strategy of fighting removal on multiple fronts, on January 8, 2007, Muratoski moved to reopen the 1992 deportation order with the BIA. In that motion, Muratoski asserted that an attorney obtained the passport for him and that he was unaware of the fraudulent nature of the passport. He also maintained that he was eligible for cancellation of removal. The BIA denied the motion to reopen on March 2, 2007, finding that it was unsupported by any evidence. The BIA also found that Muratoski’s February 15, 2007 admission of the allegations listed in the Notice to Appear undercut his claim that he believed his passport was genuine.
Returning to the other path to relief that Muratoski pursued, on February 20, 2007, he applied for cancellation of removal. In general, the Attorney General may cancel removal of an alien who is inadmissible or deportable from the United States if the alien, among other things, has “been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date” of an application for cancellation of removal; and “has been a person of good moral character during such period.” 8 U.S.C.
The fact that any person is not within any of the foregoing classes shall not preclude a finding that for other reasons such person is or was not of good moral character. In the case of an alien who makes a false statement or claim of citizenship, or who registers to vote or votes in a Federal, State, or local election (including an initiative, recall, or referendum) in violation of a lawful restriction of such registration or voting to citizens, if each natural parent of the alien (or, in the case of an adopted alien, each adoptive parent of the alien) is or was a citizen (whether by birth or naturalization), the alien permanently resided in the United States prior to attaining the age of 16, and the alien reasonably believed at the time of such statement, claim, or violation that he or she was a citizen, no finding that the alien is, or was, not of good moral character may be made based on it.
8 U.S.C. § 1101(f). Under this provision, the fact that a person is not in one of the listed categories does not preclude a finding that the person lacked good moral character. But if a person makes a false claim of citizenship, and that person meets the other criteria listed (having U.S. citizen parents, residing in the United States prior to age 16, a reasonable belief that he or she was a citizen at the time the claim was made), then a finding of lack of good moral character may not be based on that false claim of citizenship. Other false claims of citizenship may be the basis of a finding of lack of good moral character. See Guadarrama de Contreras, 24 I. & N. Dec. 625, 627 (BIA 2008) (a person “who has made a false claim of United States citizenship may be considered a person who is not of good moral character,” but Section 1101(f) of the Act “does not, however, mandate such an outcome.”).
The IJ held a hearing on Muratoski’s February 20, 2007 application for cancellation of removal. Muratoski testified that he obtained his passport with the assistance of the unnamed attorney. Muratoski also admitted he had used the passport to travel to and from the United States multiple times between 1992 and 2006. He confirmed that during his 1986 and 1987 deportation hearings, he had conceded that he was a citizen of the former Yugoslavia. He conceded that, although he thought at one time he was a United States citizen, he came to realize he had been mistaken. He testified that he paid the unnamed attorney $3500, signed some papers, and filed them at the post office with the attorney’s assistance. After his passport arrived in the mail several weeks later, the attorney told Muratoski he was a United States citizen.
But among the papers he submitted with his passport application was a birth certificate purporting that he had been born in Chicago. Nonetheless, he testified that, at the time, he did not know the document was a birth certificate or that it was false. The IJ apparently did not believe Muratoski’s claim of ignorance about the false nature of the documents supplied to gain the passport. He found Muratoski was not eligible for cancellation of removal because he lacked good moral character. See 8 U.S.C. § 1229b(b)(1). The IJ, citing 8 U.S.C. § 1101(f), based that finding on the fact that Muratoski had falsely represented himself to be a United States citizen. He ordered Muratoski removed to Macedonia.
On June 11, 2008, Muratoski filed a Motion to Reconsider (the “Motion”). In the Motion, Muratoski asked the BIA
to reconsider the May 22, 2008, decision with reference to the following:
a. The issue of good moral character in the narrow review as was concluded by the Immigration Judge (the Respondent’s believing that he is a U.S. citizen).
b. The issue of Respondent’s failure to depart the U.S. as ordered by the Immigration Court after he received his U.S. passport.
R. 3, at 2-3. Specifically, Muratoski conceded that he held a fraudulent U.S. passport but argued that if he reasonably believed he was a U.S. citizen, then Section 1101(f) may not be construed against him. Muratoski complained that, in its dismissal of his original appeal, the BIA stated that Section 1101(f) required more than a reasonable belief of citizenship. The IJ focused on whether Muratoski reasonably believed he was a U.S. citizen and concluded that he knew or should have known he was not and therefore lacked good moral character in presenting himself as a citizen. Muratoski wished only for review of the IJ’s conclusion that his belief was unreasonable but the BIA addressed additional sections of 1101(f) that were not referenced by the IJ. Muratoski also objected to the BIA’s comments about his failure to depart the United States voluntarily when he had been ordered to do so in 1992. Muratoski had not addressed that issue in this round of proceedings because the IJ had not raised it. Muratoski argued in the Motion to Reconsider that at the time he was allowed voluntary departure, he thought he was a United States citizen no longer subject to the jurisdiction of the immigration court.
II.
In his petition to this court, Muratoski contends that the Board misconstrued Section 1101(f) and failed to follow its own precedent in holding that he lacked good moral character on the basis of a false claim of citizenship. According to Muratoski, simply “claiming that you are a citizen is not enough to bar a finding of good moral character according to Board precedent.” Brief for Petitioner, at 15. Citing the BIA’s decision in Guadarrama de Contreras, he contends that a mere false claim of citizenship does not automatically preclude a finding of good moral character. He also maintains that the Board misconstrued Section 1101(f) in finding that a false claim of citizenship was sufficient to bar a finding of good moral character.
A.
The government first argues that we lack jurisdiction to review anything other than the Board’s denial of Muratoski’s motion to reconsider. We have the authority and the obligation in every case to assess our own jurisdiction, and we undertake this review
de novo. Fonseca-Sanchez v. Gonzales,
B.
The government next contends that Muratoski did not exhaust the only argument he raises on appeal, and we therefore may not consider that argument.
See
8 U.S.C. § 1252(d)(1) (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).
See also Ghaffar v. Mukasey,
The government characterizes Muratoski’s issue on appeal as a challenge to the BIA’s construction of Section 1101(f), the statutory provision governing the finding of good moral character. According to the government, in his motion to reconsider, Muratoski asked the Board to consider only whether the IJ correctly concluded that he lacked good moral character because he did not reasonably believe he was a U.S. citizen when he portrayed himself to be one. 2 The government points out that Muratoski now argues that the BIA misconstrued Section 1101(f) and also misconstrued its own precedent in Guadarrama de Contreras in finding that a false claim of citizenship automatically precluded a finding of good moral character. 3
The government is correct that Muratoski did not exhaust the argument he makes now because he did not raise it in his motion to reconsider. In the motion to reconsider, Muratoski did not contend that the Board misconstrued Section 1101(f) but rather complained that the Board addressed parts of Section 1101 on which the IJ had not relied. He wished the Board to reconsider the IJ’s conclusions only on the grounds the IJ had considered. He did not cite
Guadarrama de Contreras
in the motion to reconsider, much less argue that the Board had misconstrued this precedent
C.
For the sake of completeness, if we were to consider Muratoski’s argument on the merits, his petition would still fail. Muratoski claims that the Board failed to follow
Guadarrama de Contreras
and misconstrued Section 1101(f). The Board did no such thing. The Board correctly found that the IJ could find, but was not compelled to find, that Muratoski lacked good moral character on the basis of his false claim of U.S. citizenship. Muratoski was not part of the excepted group of individuals who came to the United States before age 16, had citizen parents, and reasonably believed they were citizens at the time they made the false claim of citizenship. The BIA then found that the IJ did not err in finding that Muratoski lacked good moral character because he had made a false claim of citizenship and he did so at a time when he clearly had no reasonable belief that he was a citizen. He claimed to have been born in Chicago while proceedings were pending in which he had admitted he was born in Yugoslavia. He claimed to be a citizen even as his claims for asylum and withholding of deportation were pending. Although we may review non-discretionary findings of the IJ or BIA (including questions of statutory interpretation and constitutional issues), we lack jurisdiction to review a purely discretionary decision that Muratoski lacked good moral character. 8 U.S.C. § 1252(a)(2)(B)(i);
Cuellar Lopez v. Gonzales,
III.
Because Muratoski failed to exhaust his administrative remedies on the sole issue he raises in the petition for review, the petition is Denied.
Notes
. A fair amount of the terminology has changed over the last twenty-five years. Removal has taken the place of deportation, for example. The Department of Homeland Security has taken over the functions of the former INS. We will apply the terms in use at the time of the events described.
. In its May 22, 2008 decision, the BIA weighed against Muratoski his failure to depart the United States as ordered by the immigration court after he received his passport. In the motion to reconsider, Muratoski complained that this was error. Muratoski does not repeat this argument in his petition to this court. The BIA correctly determined that Muratoski's procurement of the passport after he had been ordered to depart undermined his claim that he reasonably thought he was a United States citizen.
. As we will address shortly, the Board made no such mistake. We are merely recounting the argument from Muratoski's perspective at this stage of the analysis.