Adil Muratoski v. ERIC H. HOLDER, JR., Attorney General of the United States

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3378
ADIL MURATOSKI,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of a Final Order of
the Board of Immigration Appeals.
A027 615 649
ARGUED APRIL 6, 2010—DECIDED SEPTEMBER 20, 2010
Before KANNE, ROVNER and TINDER, Circuit Judges.
ROVNER, Circuit Judge. 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. Be-
cause Muratoski did not preserve the issue he now
asks us to review, we deny his petition.

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2 No. 09-3378
A fair amount of the terminology has changed over the last 1
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.
I.
Adil Muratoski is a native and citizen of Macedonia
who entered the United States in August 1986. Shortly
thereafter, the former Immigration and Naturaliza-
tion 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 with-
out inspection. During deportation proceedings held
later that year, Muratoski admitted he was deportable
as charged. He applied for asylum and withholding of
deportation. On May 4, 1987, an IJ entered an order1
finding Muratoski deportable and denying his applica-
tions 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 an order of deportation if Muratoski failed
to depart in the time allotted. The BIA dismissed
Muratoski’s appeal on December 8, 1992, granting him
thirty days to depart voluntarily. Muratoski failed to
heed that order, and on March 10, 1993, the INS sent
Muratoski a letter ordering him to report for deportation.
Unbeknownst to the INS, Muratoski had been working
another angle in his bid to stay in the United States. In

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No. 09-3378 3
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 pass-
port using a falsified birth certificate 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 Enforce-
ment (“ICE”) apprehended Muratoski at his home in
Arlington Heights, Illinois. ICE officials served Murato-
ski 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 subse-
quent to his deportation. He then erroneously was ad-
mitted to the United States in 2002 based on the fraudu-
lently 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.

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4 No. 09-3378
§ 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 Febru-
ary 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 pass-
port 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 cancella-
tion 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

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No. 09-3378 5
good moral character during such period.” 8 U.S.C.
§ 1229b(b)(1)(A)-(B). Section 1101(f) provides a list of
persons who are per se excluded from receiving a finding
of good moral character. Among the categories excluded
are drunkards, gamblers, aggravated felons and persons
who assisted Nazi persecutions. Section 1101(f) also
contains a “catch-all” provision as well as an exclusion
to the catch-all:
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 regis-
ters to vote or votes in a Federal, State, or local elec-
tion (including an initiative, recall, or referendum)
in violation of a lawful restriction of such registra-
tion or voting to citizens, if each natural parent of the
alien (or, in the case of an adopted alien, each adop-
tive 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 citizen-
ship, and that person meets the other criteria listed

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6 No. 09-3378
(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 charac-
ter. 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 testi-
fied 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 Yugosla-
via. 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

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No. 09-3378 7
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.
Muratoski timely appealed that order to the Board. He
contended that the IJ had failed to consider whether he
reasonably believed himself to be a United States citizen
at the time he obtained his passport. The BIA dismissed
the appeal on May 22, 2008, noting that Muratoski
did not deny that he possessed a fraudulent passport or
that he used it multiple times to reenter the United States.
The BIA cited Section 1101(f), listing classes of persons
who are per se disabled from claiming good moral charac-
ter. The BIA recognized that the “catch-all” provision in
Section 1101(f) specifies that a person need not fall
within one of the per se classes in order to be found
lacking in good moral character, with one exception.
Section 1101(f) permits an IJ to find that a person who
makes a false claim of citizenship is not of good moral
character unless (1) that person’s parents are citizens,
(2) that person permanently resided in the United States
prior to the age of 16, and (3) that person reasonably
believed at the time of claiming citizenship that he or
she was a citizen. A person meeting the three criteria
of the exception may not be found to lack good moral
character simply on the basis of making a false claim

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8 No. 09-3378
of citizenship. The BIA found that the exception to the
catch-all provision in Section 1101(f) did not apply to
Muratoski because he made no claim that his parents
were United States citizens or that he resided in the
United States before age 16. The BIA ruled that the
agency was therefore not precluded from finding that
Muratoski lacked good moral character on the basis of
a false claim of citizenship. The BIA also found that the
IJ did not clearly err in finding that Muratoski either
knew or should have known he was not a United States
citizen at the time he made that claim. Among the evi-
dence supporting the IJ’s finding was the timing of
Muratoski’s acquisition of the false passport and the use
of a document lisiting his birthplace as Chicago.
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

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No. 09-3378 9
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 addi-
tional 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 im-
migration court.
The BIA denied the Motion to Reconsider on August 31,
2009. It noted that it had in fact reviewed the IJ’s finding
that Muratoski lacked good moral character, and had
found no clear error in the IJ’s conclusion that Muratoski
had represented himself to be a United States citizen
when he had no reasonable belief that he was in fact
a citizen. Again reviewing the circumstances of Mura-
toski’s claim of citizenship, the BIA noted that, in
applying for his passport, Muratoski had used a birth
certificate stating that he was born in Chicago. The BIA
also cited the IJ’s finding that Muratoski was desperate
not to leave the United States and had admitted during
testimony that he would have signed anything to stay

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10 No. 09-3378
in this country. The BIA further cited the IJ’s reliance on
the timing of obtaining the passport as evidence that
Muratoski did not have a good-faith belief that he was a
United States citizen. Muratoski had applied for the
passport (using documents that claimed he was born
in Chicago) after the IJ denied him political asylum and
withholding of deportation, while his appeal of that
decision was pending before the BIA. In those very pro-
ceedings for asylum and withholding of deportation,
Muratoski had conceded he was born in Yugoslavia.
In denying the motion to reconsider, the BIA cited
its own decision in Matter of Guadarrama de Contreras,
24 I. & N. Dec. 625 (BIA 2008), for the proposition that
certain persons who make a false claim of citizenship
may be found to be lacking good moral character al-
though Section 1101(f) does not mandate that finding.
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 Peti-
tioner, at 15. Citing the BIA’s decision in Guadarrama
de Contreras, he contends that a mere false claim of citizen-
ship does not automatically preclude a finding of good
moral character. He also maintains that the Board miscon-
strued Section 1101(f) in finding that a false claim of

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No. 09-3378 11
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 juris-
diction, and we undertake this review de novo. Fonseca-
Sanchez v. Gonzales, 484 F.3d 439, 443 (7th Cir. 2007); Gattem
v. Gonzales, 412 F.3d 758, 762 (7th Cir. 2005). Muratoski
filed his petition in this court on September 29, 2009,
within thirty days of the BIA’s August 31, 2009 decision
denying his motion to reconsider, and his petition is
therefore timely as to that decision. See 8 U.S.C. § 1252(b)(1)
(“[t]he petition for review must be filed not later than
30 days after the date of the final order of removal”). See
also Asere v. Gonzales, 439 F.3d 378, 380 (7th Cir. 2006)
(a petition for review of a final order of removal must
be filed not later than thirty days after the date of that
order). Under the same authority, we may not review
the Board’s underlying decision of May 22, 2008 dis-
missing Muratoski’s appeal of the IJ’s decision because
his petition is not timely as to that decision. Asere, 439
F.3d at 380 (the thirty-day limit is jurisdictional and
therefore may not be excused). Moreover, a motion to
reconsider does not toll the time to seek judicial review.
Stone v. INS, 514 U.S. 386, 405 (1995) (the finality of a
removal order is not affected by the subsequent filing of a
motion to reconsider); Rehman v. Gonzales, 441 F.3d 506,

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12 No. 09-3378
508 (7th Cir. 2006) (a motion asking the BIA to reconsider
its decision does not toll the time to seek judicial re-
view); Asere, 439 F.3d at 380 (“the case law could not be
clearer on this issue; a motion to reconsider does not
toll the initial 30-day filing deadline for seeking judicial
review of the underlying removal order”). Thus, the
only decision before us is the Board’s denial of
Muratoski’s motion to reconsider, a decision that we
review for abuse of discretion. Hernandez-Baena v.
Gonzales, 417 F.3d 720, 724 (7th Cir. 2005); Ali v. Ashcroft,
395 F.3d 722, 731 (7th Cir. 2005).
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 administra-
tive remedies available to the alien as of right). See also
Ghaffar v. Mukasey, 551 F.3d 651, 654 (7th Cir. 2008) (an
alien ordered removed from this country is required to
exhaust the administrative remedies available to him
before seeking judicial review of the removal order). “The
duty to exhaust includes the obligation to first present to
the BIA any argument against the removal order as to
which the Board is empowered to grant the alien mean-
ingful relief.” Ghaffar, 551 F.3d at 654. Although the
failure to exhaust may be excused when the alien is
making a constitutional claim, no exception to the ex-
haustion requirement applies here because the BIA is

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No. 09-3378 13
In its May 22, 2008 decision, the BIA weighed against 2
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 mis- 3
take. We are merely recounting the argument from Muratoski’s
perspective at this stage of the analysis.
empowered to grant Muratoski meaningful relief on the
issue he now raises. Ghaffar, 551 F.3d at 655.
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 gov-
ernment, in his motion to reconsider, Muratoski asked
the Board to consider only whether the IJ correctly con-
cluded 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. The government points out2
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

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14 No. 09-3378
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 in its May 22,
2008 decision. We therefore may not consider this argu-
ment because Muratoski failed to exhaust all administra-
tive remedies available to him as of right. 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.”). As Muratoski
makes no other argument in his petition to this court,
we must deny the petition.
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

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No. 09-3378 15
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 citi-
zen 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 discre-
tionary decision that Muratoski lacked good moral char-
acter. 8 U.S.C. § 1252(a)(2)(B)(i); Cueller Lopez v. Gonzales,
427 F.3d 492, 493 (7th Cir. 2005). Because neither the IJ
nor the BIA misconstrued Section 1101(f) but merely
made discretionary decisions, we would be forced to
dismiss the appeal for lack of jurisdiction if we con-
sidered the merits.
III.
Because Muratoski failed to exhaust his administra-
tive remedies on the sole issue he raises in the petition
for review, the petition is DENIED.
9-20-10

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