NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________

No. 17-2800 _______________

CRISTIAN ROSARIO PICHARDO, Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent

_______________

On Petition for Review of an Order of the United States Department of Justice Board of Immigration Appeals (BIA-1: A055-968-724)

Immigration Judge: Kuyomars Q. Golparvar _______________

Argued: July 10, 2018

Before: GREENAWAY, JR., RESTREPO, and BIBAS, Circuit Judges.

(Filed: October 23, 2018) _______________

OPINION _______________

 This disposition is not an opinion of the full Court and, under I.O.P. 5.7, does not constitute binding precedent. Jessica K. Southwick [Argued] Anthony C. Vale Pepper Hamilton 3000 Two Logan Square 18th and Arch Streets Philadelphia, PA 19103 Counsel for Petitioner

Chad A. Readler, Acting Assistant Attorney General Kohsei Ugumori, Senior Litigation Counsel Jesse L. Busen [Argued] United States Department of Justice Office of Immigration Litigation P.O. Box 878 Ben Franklin Station Washington, DC 20044, Counsel for Respondent

RESTREPO, Circuit Judge.

Cristian Rosario Pichardo petitions for review of a final order of removal issued

by the Board of Immigration Appeals (“BIA”). For the reasons stated below, we will

deny the petition in part and dismiss it in part.

I.

Pichardo is a Lawful Permanent Resident (“LPR”) from the Dominican Republic

who has been living in the United States since 2002. On the basis of a 2014 conviction

for possession of a controlled substance, he was initially charged with being removable

pursuant to

(a)(2)(B)(i). Following the immigration judge’s (“IJ”)

preliminary determination that Pichardo was statutorily eligible for cancellation of

removal under 8 U.S.C. § 1229b(a), the Government amended the charging document to

include a second basis for removability: a 2016 misdemeanor conviction for

2 “[i]ntimidation of witnesses or victims” under

(a)(1).1 Finding

that his 2016 conviction constituted an aggravated felony as “an offense relating to

obstruction of justice,”

(a)(43)(S), the IJ concluded that Pichardo was no

longer eligible to obtain cancellation of removal and ordered him removed.

On appeal to the BIA, Pichardo disputed that his conviction under

(a)(1) was an aggravated felony precluding him from obtaining the relief

requested. The BIA agreed with the IJ and dismissed the appeal, holding that Pichardo’s

conviction qualified as an aggravated felony under the categorical approach. Pichardo

now petitions this Court for review.2

II.

The BIA had jurisdiction under

(b)(3). We have jurisdiction

pursuant to

(a)(1). We exercise plenary review regarding whether a

conviction relates to obstruction of justice. Denis v. Att’y Gen. of U.S.,

, 209

1 The relevant provision of Pennsylvania misdemeanor “Intimidation of witnesses or victims” provides:

A person commits an offense if, with the intent to or with the knowledge that his conduct will obstruct, impede, impair, prevent or interfere with the administration of criminal justice, he intimidates or attempts to intimidate any witness or victim to: (1) Refrain from informing or reporting to any law enforcement officer, prosecuting official or judge concerning any information, document or thing relating to the commission of a crime.

(a)(1). 2 Pichardo does not challenge the BIA’s conclusion that his sentence of six to twelve months’ incarceration for his conviction under

(a)(1) is one for “at least one year” as required by

(a)(43)(S).

3 (3d Cir. 2011).

But we may only “review a final order of removal” if the petitioner

“has exhausted all administrative remedies available to [him or her] as of right[.]”

(d)(1). In order to “exhaust[] all administrative remedies, and thereby

preserve[] the right of judicial review,” a petitioner must “raise[] all issues before the

BIA.” Lin v. Att’y Gen. of U.S.,

(3d Cir. 2008) (internal quotation

marks and citations omitted). Although “[w]e do not . . . apply this principle in a

draconian fashion,” the petitioner must “make[] some effort, however insufficient, to

place the Board on notice of a straightforward issue being raised on appeal[.]”

at 121

(quoting Joseph v. Att’y Gen. of U.S.,

(3d Cir. 2006)).

III.

Pichardo argues, as he did on appeal to the BIA, that the least culpable means of

satisfying the mens rea element of Pennsylvania intimidation of a witness—knowledge—

is a lesser, and therefore broader, mental state than the intent required by the generic

federal offense.3 He thus contends that

(a)(1) and federal

obstruction of justice are not a categorical match. See Pet. Br. 10-13 (citing, inter alia,

Mathis v. U.S.,

(2016); Moncrieffe v. Holder,

(2013)).

3 The parties dispute which provision is the correct federal analog. The Government maintains that either

(b)(3) or (d)(2) is the relevant federal provision. Pichardo contends that the relevant statute is the indivisible whole of

(b). Because our conclusion on the mens rea issue remains unchanged regardless of which provision is the proper analog, we need not resolve this dispute.

4 But, even if we assume without deciding that Pichardo is correct on these points,

our precedent nonetheless requires us to conclude—at least with respect to the mens rea

element—that Pichardo’s conviction is categorically one “relating to” obstruction of

justice, even if it is not necessarily one for obstruction of justice. See Denis,

.

When evaluating whether a particular crime constitutes an aggravated felony

“relating to” enumerated conduct, “[w]e need not determine the precise degree of

similarity between the elements of [the petitioner’s] offense and a listed federal crime,”

as we might when employing the categorical approach in other contexts. Flores v. Att’y

Gen. of U.S.,

(3d Cir. 2017). Instead, “we must ‘survey the

interrelationship between the two statutory provisions and apply the phrase “relating to”

broadly, seeking a logical or causal connection.’”

(quoting Denis,

).

We have repeatedly relied on this important distinction between an enumerated

crime and an offense “relating to” that crime to hold that the latter may constitute an

aggravated felony notwithstanding an imperfect match regarding mens rea. For example,

we concluded that the “distinction between ‘counterfeiting’ and ‘relating to . . .

counterfeiting’” is “critical” such that the former might require intent, but the latter could

cover broader mental states “considering the broad reach of the term ‘relating to[.]’”

Denis,

(quoting Yong Wong Park v. Att’y Gen. of U.S.,

(3d Cir. 2006)). Similarly, we have held that a conviction under a statute which did not

require intent was nonetheless an aggravated felony “‘related to’ forgery” because

“Congress’ choice of the word ‘related to’ was intended to capture certain criminal

5 conduct . . . which does not contain any intent to deceive or defraud.” Bobb v. Att’y Gen.

of U.S.,

(3d Cir. 2006).

Because our case law is clear that the phrase “relating to” encompasses a wider

range of permissible mental states, we will deny the petition on this point.

IV.

In his petition for review, Pichardo further argues that Pennsylvania intimidation

of a witness is not categorically obstruction of justice because the actus reus of the

Pennsylvania statute is broader than the acts proscribed by the federal offense. Pichardo

presents, for the first time, the two-fold argument that (1) federal “obstruction of justice []

does not reach conduct unmoored from judicial proceedings[,]” whereas (2) Pennsylvania

intimidation of a witness does. Pet. Br. at 8 (quoting Flores,

(citations

omitted in original)).

In support of the first point, Pichardo relies heavily on Flores, arguing that

Pennsylvania intimidation of a witness is more akin to the South Carolina accessory-

after-the-fact statute at issue in that case than it is to the generic federal offense. With

respect to the second, Pichardo contends that the “administration of criminal justice” is

defined so broadly under Pennsylvania law that Pennsylvania intimidation of a witness

prohibits a wide range of acts, encompassing “interference with myriad topics, including

‘rehabilitation of accused persons or criminal offenders . . . or the collection, storage

dissemination or usage of criminal history record information.’” Reply Br. at 5-6 (quoting

)).

6 Without regard to whether these arguments have merit, Pichardo was obligated to

“make[] some effort . . . to place the Board on notice” of these complex issues in order to

exhaust his available administrative remedies. Lin,

(quoting Joseph,

). Yet the entirety of his brief on appeal to the BIA focuses on mens rea or on

issues not before this Court. No mention was made of the nuanced actus reus issue.

Because Pichardo failed to place the BIA on notice of the actus reus issues he has

identified in his petition for review, any such issues are unexhausted. Therefore, we lack

jurisdiction to consider them. We will dismiss the petition to the extent it argues the actus

reus element of the Pennsylvania statute does not categorically match the acts prohibited

by the federal statute.

V.

We will deny in part and dismiss in part the petition for review.

7