NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 18-2404 _____________

SAMMY MUNGAI GICHUHI, Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent _____________

On Petition for Review of a Decision of the Board of Immigration Appeals (Agency No. A099-256-505) Immigration Judge: Walter A. Durling ___________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) April 14, 2020 ___________

Before: CHAGARES, SCIRICA, and ROTH, Circuit Judges.

(Filed: July 17, 2020)

___________

OPINION * ___________

* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. CHAGARES, Circuit Judge.

Sammy Mungai Gichuhi petitions for review of an order of the Board of

Immigration Appeals (“BIA”) affirming an Immigration Judge’s (“IJ”) denial of his

application for cancellation of removal. For the following reasons, we will dismiss the

petition for lack of jurisdiction.

I.

We write for the parties and so recount only the facts necessary to our decision.

Gichuhi is a citizen of Kenya who first entered the United States in 1998 on a visitor visa.

In 2004, he married Erica Jones, a U.S. citizen. In 2006, Gichuhi applied for adjustment

of status based on an alien relative petition filed by his wife. Gichuhi listed no children

on his application. The Department of Homeland Security (“DHS”) granted his

application in 2008.

In 2012, Gichuhi filed a naturalization application on which he listed two children.

Gichuhi indicated that his children were born in 1995 and 2003 — before he married

Jones and well before he submitted his adjustment application.

In 2014, Gichuhi was convicted of making a false statement on his naturalization

application. Specifically, he was convicted of falsely indicating that he had been married

to and living with his wife, Jones, for three years prior to his application. United States

Citizenship and Immigration Services then denied Gichuhi’s naturalization application

because (1) he failed to respond to a second request for evidence and (2) he was not a

lawfully admitted permanent resident because he had obtained permanent resident status

through a fraudulent marriage.

2 In September 2016, Gichuhi was detained by DHS upon reentering the United

States after foreign travel. DHS charged Gichuhi with removability based on his

conviction for making a false statement on his naturalization application, which qualifies

as a crime involving moral turpitude. The IJ sustained the charge, and Gichuhi sought

cancellation of removal under 8 U.S.C. § 1229b(a).

Before the IJ, the Government argued that Gichuhi was not eligible for

cancellation of removal because he had made a willful and material misrepresentation in

his adjustment application by omitting the fact that he had two children with a woman

other than Jones. The Government contended that this omission shut off a line of inquiry

into Gichuhi’s adjustment application that could have resulted in his application being

denied. As a result, the Government alleged, Gichuhi was inadmissible at the time he

adjusted to permanent resident status, and thus ineligible for cancellation of removal now.

The IJ concluded that Gichuhi established a prima facie case for cancellation of

removal, shifting the burden to the Government to demonstrate that Gichuhi was

inadmissible. The IJ concluded that the Government failed to meet its burden because

“having children would not alone expose [Gichuhi] to any potentially exclusionary bars”

that would render him ineligible for cancellation of removal. Administrative Record

(“A.R.”) 883. The IJ further found that it was “purely speculative” that Gichuhi’s listing

his children properly on his adjustment application would have led to further inquiry into

whether Gichuhi was eligible for status adjustment. A.R. 884. The IJ then granted

Gichuhi cancellation of removal.

3 The Government appealed to the BIA. While the appeal was pending, the BIA

held in a separate case that a misrepresentation is “material” under

(a)(6)(C)(i) “when it tends to shut off a line of inquiry that is relevant to the alien’s

admissibility and that would predictably have disclosed other facts relevant to his

eligibility for a visa, or other documentation, or admission to the United States.” Matter

of D-R-,

(BIA 2017). In another case, the BIA held that where a

record contains “some evidence” from which “a reasonable factfinder could conclude that

one or more grounds for mandatory denial of the application [for cancellation of removal]

may apply, the alien[] bears the burden under

(d) to prove by a

preponderance of the evidence that such grounds do not apply.” Matter of M-B-C-,

(BIA 2017).

In light of these decisions, the BIA vacated the IJ’s order granting Gichuhi

cancellation of removal, holding that the IJ did not properly place the burden on Gichuhi

to prove that he was not inadmissible under

(a)(6)(C)(i). The BIA

concluded that remand was warranted because “the record contains some evidence from

which a reasonable factfinder could conclude that [Gichuhi’s] omission of his children

was willful and material,” which would make him inadmissible at the time he applied for

status adjustment, and thus, ineligible for cancellation of removal. A.R. 137. The BIA

identified a variety of record evidence tending to show that Gichuhi lived with his

children and maintained a fraudulent marriage to Jones at the time he applied for a status

adjustment. The BIA directed the IJ to “determine whether [Gichuhi] has proved by a

preponderance of the evidence under

(d) both that he did not know that

4 [the two children he omitted] were his children in December 2006, and that the omission

of his children on his application for adjustment of status did not shut off a line of inquiry

into the legitimacy of his marriage.” A.R. 138 (citing Matter of D-R-, 27 I&N Dec. at

105).

On remand, the IJ concluded that Gichuhi failed to show by a preponderance of

the evidence that the omission of his children from his adjustment application was not

willful and material, and thus, Gichuhi failed to show that a mandatory bar to cancellation

of removal did not apply. As a result, the IJ denied his application for cancellation of

removal. The BIA adopted and affirmed the IJ’s decision and dismissed Gichuhi’s

appeal. Gichuhi timely filed a petition for review, and we granted Gichuhi’s motion for a

stay of removal while we considered his petition.

II.

We have jurisdiction under

(a) to review a final order of removal.

Although we are stripped of that jurisdiction when an order is based on convictions for

certain criminal offenses, such as Gichuhi’s,

(a)(2)(C), we retain

jurisdiction under § 1252(a)(2)(D) to the extent that Gichuhi raises questions of law.

However, we lack jurisdiction over Gichuhi’s petition for a separate reason:

because he failed to raise the issues in his petition before the BIA. He makes two legal

arguments in his petition. First, Gichuhi argues that the definition of “material” that the

BIA promulgated in Matter of D-R- and applied to his case, conflicts with the Supreme

Court’s definition of “material.” Second, he argues that the IJ and BIA applied the wrong

5 burden-shifting framework, which erroneously triggered his burden to rebut the

Government’s case against him.

In Abdulrahman v. Ashcroft,

, 594–95 (3d Cir. 2003), we noted the

requirements of

(d)(1) compelled the conclusion that “an alien is required

to raise and exhaust his or her remedies as to each claim or ground for relief if he or she

is to preserve the right of judicial review of that claim.” The petitioner in Abdulrahman,

similar to Gichuhi in this case, asserted that the IJ applied an incorrect standard to his

adjudicate his claim. We determined that “because Abdulrahman failed to raise that issue

in his appeal to the Board, we do not have jurisdiction to consider the question.”

. We hold that we lack jurisdiction over Gichuhi’s petition because he did not raise

either of his arguments before the BIA.

III.

For the foregoing reasons, we will dismiss the petition for review.

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