FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

DECEMBER 4, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-11341

Non-Argument Calendar

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Agency No. A038-869-762

ISSAC DANILO MATUTE,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

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Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(December 4, 2009)

Before CARNES, BARKETT and KRAVITCH, Circuit Judges.

PER CURIAM:

Petitioner Issac Danilo Matute, a native and citizen of Honduras, through
counsel, seeks review of the Board of Immigration Appeals’s (“BIA”) decision

affirming the Immigration Judge’s (“IJ”) order finding him removable and denying

his application for a waiver of inadmissibility under former § 212(c) of the

Immigration and Naturalization Act (“INA”), 8 U.S.C. § 1182(c) (1996). We deny

the petition.

I.

In 2005, the Department of Homeland Security (“DHS”) served Matute with

a notice to appear (“NTA”), charging him with removability on three grounds:

(1) under INA § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i), for being convicted

of a crime involving moral turpitude within five years of admission for which a

sentence of one year or longer may be imposed; (2) under INA § 237(a)(2)(A)(ii),

8 U.S.C. § 1227(a)(2)(A)(ii), for being convicted, any time after admission, of two

crimes involving moral turpitude not arising out of a single scheme of criminal

misconduct; and (3) under INA § 237(a)(3)(D), 8 U.S.C. § 1227(a)(3)(D), for

being an alien who has falsely represented himself to be a citizen of the United

States for any purpose or benefit under either the INA or a federal or state law.

Matute conceded his removability on the first two grounds, based on his

1990 Florida state court convictions for grand theft vehicle, burglary of a

conveyance, and possession of burglary tools. With regard to the third ground,

Matute conceded that, in 2004, he filed a voter registration application in which he

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falsely claimed to be a citizen of the United States, but he argued that he was not

removable on that basis because he did not do so “knowingly.” Matute also filed

an application for a waiver of inadmissibility on the moral turpitude grounds, under

former INA § 212(c), 8 U.S.C. § 1182(c) (1996), but he conceded that the false

representation charge was not subject to a waiver and, accordingly, if the IJ

sustained that charge, his waiver argument would be moot.

Following a removal hearing, the IJ found Matute removable as charged.

The IJ also implicitly denied Matute’s application for a waiver of inadmissibility,

finding him ineligible for such relief based on his removability under INA

§ 237(a)(3)(D). Even so, the IJ explicitly stated that he “[was] not denying the

application for the waiver in the exercise of discretion, meaning that should the

case come back on remand, [Matute] would be free to pursue the application . . . .”

The BIA likewise denied relief. It noted Matute’s criminal convictions and

affirmed the IJ’s finding that Matute “knowingly made a false representation to

United States citizenship in registering to vote,” as necessary to sustain the third

charge, under INA § 237(a)(3)(D).

On appeal, Matute first argues that a jurisdictional bar to reviewing

discretionary decisions does not apply to his case. Substantively, he challenges the

BIA’s finding that he misrepresented his citizenship status and argues that the BIA

should have interpreted the statute to include a mens rea requirement that such

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misrepresentation be made “knowingly.” While Matute concedes that a second

jurisdictional bar involving criminal aliens applies, he maintains that we still have

jurisdiction to consider his petition because he has raised a question of law. We

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agree that the misrepresentation must have been made knowingly and to the extent

that this conclusion is a legal determination, we have jurisdiction. However, there

is no question that the IJ conducted a hearing, heard testimony, and determined that

Matute did know that he was signing a false statement. We find no error.

PETITION DENIED.

Matute also raises several new claims for the first time on appeal, but we lack jurisdiction 1

to review these arguments. See Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th

Cir. 2006) (“[A]bsent a cognizable excuse or exception,” this Court “lack[s] jurisdiction to consider

a claim raised in a petition for review unless the petitioner has exhausted his administrative remedies

with respect thereto.”).

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