Andrésrodolfo Pérez Batres v. LORETTA E. LYNCH, Attorney General of the United States

United States Court of Appeals
For the First Circuit
No. 14-1999
ANDRÉS RODOLFO PÉREZ BATRES,
Petitioner,
v.
LORETTA E. LYNCH,
Attorney General of the United States, *
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Lynch, and Kayatta,
Circuit Judges.
Hans J. Bremer and Bremer Law & Associates, LLC on brief for
petitioner.
Jennifer R. Khouri, Trial Attorney, Office of Immigration
Litigation, Civil Division, United States Department of Justice,
Benjamin Mizer, Acting Assistant Attorney General, and Jennifer P.
Levings, Senior Litigation Counsel, Office of Immigration
Litigation, on brief for respondent.
August 12, 2015
* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Loretta E. Lynch has been substituted for former Attorney General
Eric H. Holder, Jr., as the respondent.

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LYNCH, Circuit Judge. Andrés Rodolfo Pérez Batres, a
native and citizen of Guatemala who has been illegally present in
this country, petitions for review of the Board of Immigration
Appeals' (BIA) decision dismissing his appeal of an Immigration
Judge's (IJ) removal order. He now argues to this court that the
government is estopped from removing him because it failed to take
from him an invalid lawful permanent resident (LPR) card he had
once been issued and to update its databases to reflect that he
was not an LPR. Because Pérez Batres raises his argument of
equitable estoppel for government misconduct for the first time on
petition to this court, he has failed to exhaust his administrative
remedies with the BIA. We lack jurisdiction and dismiss his
petition.
I.
Between 1974 and 2009, Pérez Batres traveled in and out
of the United States approximately 70 times. He entered the United
States without being admitted or paroled in 1974. After being
deported in June 1976, he reentered illegally in November 1976.
An IJ ordered Pérez Batres to be deported in 1979 and granted his
application for voluntary departure. Pérez Batres remained in the
United States.
In March 1981, Pérez Batres filed an Application for
Permission to Reapply for Admission into the United States After
Deportation or Removal (Form I-212) based on his marriage to a

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United States citizen. He left the United States on May 11, 1981,
and went to the United States Consulate in Halifax, Nova Scotia,
Canada. Pérez Batres obtained LPR status -- apparently because he
wrongfully represented that he had been removed only once, rather
than two times -- and was admitted to the United States on May 12,
1981.
Pérez Batres was placed in deportation proceedings, and
in 1984, an IJ ordered Pérez Batres removed, terminated his LPR
status, and granted him voluntary departure. The BIA affirmed the
IJ's decision in 1986. Immigration officials failed to confiscate
his now invalidated LPR card and to update their databases,
however.
Using his invalid LPR card, Pérez Batres continued to
travel to and from the United States approximately twice a year
until 2009. In November 2009, Pérez Batres applied for
naturalization. His application was denied because he failed to
establish he was lawfully admitted as a permanent resident and he
failed to demonstrate good moral character in that he made false
statements about a number of issues, including his immigration
history and prior arrests.
The Department of Homeland Security served Pérez Batres
with a Notice to Appear in 2011. Pérez Batres appeared in hearings
before an IJ in 2012 and 2013, at the end of which the IJ found
him removable because he obtained immigration benefits --

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including his LPR status and numerous entries into the United
States -- by fraud or material representation and because he
entered the United States without valid documentation. Pérez
Batres appealed to the BIA. He argued that the government failed
to establish that he had any intent to commit fraud because he
believed he held a valid green card. 1 Pérez Batres also claimed
that the IJ did not afford appropriate weight to evidence that he
made an honest mistake in his 2009 naturalization application.
The BIA affirmed the IJ's finding and dismissed his appeal. Pérez
Batres's petition for judicial review followed.
II.
In his petition for review of the BIA's decision, Pérez
Batres argues that equitable estoppel should be applied to
terminate proceedings against him. Pérez Batres brought a
different theory before the BIA, however. Indeed, Pérez Batres
1 The Immigration and Nationality Act (INA) § 212(a)(6)(C)(i)
provides, "[a]ny alien who, by fraud or willfully misrepresenting
a material fact, seeks to procure (or has sought to procure or has
procured) a visa, other documentation, or admission into the United
States or other benefit provided under this Act is inadmissible."
See 8 U.S.C. § 1182(a)(6)(C)(i). Pérez Batres cited cases to
support his argument that the government has the burden of showing
the fraud is willful by clear and convincing evidence. Because
Pérez Batres does not raise this argument on appeal, we do not
evaluate it.

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does not claim that he made his estoppel argument to the BIA or
that the exhaustion requirement does not apply to his case. 2
Pérez Batres's equitable estoppel argument contains
three elements: (1) The government engaged in affirmative
misconduct by failing to confiscate his LPR card and by allowing
him to travel in and out of the United States approximately 70
times; (2) the government caused him to have a reasonable belief
that his LPR card was valid; and, (3) he detrimentally relied on
this belief. See Costa v. INS, 233 F.3d 31, 38 (1st Cir. 2000)
(explaining the three elements of an equitable estoppel claim).
The first and third elements are missing from his argument to the
BIA, and the second element was used to advance an entirely
different argument.
First, Pérez Batres never described the government's
actions as affirmative misconduct to the BIA. Pérez Batres said
only that the government failed to confiscate his LPR card and
admitted him to the United States. See Dantran, Inc. v. U.S. Dep't
of Labor, 171 F.3d 58, 67 (1st Cir. 1999) ("It is common ground
that affirmative misconduct requires something more than simple
negligence . . . ."). Second, while Pérez Batres's argument to
2 The BIA also did not address the issue of equitable estoppel
in its decision. See Meng Hua Wan v. Holder, 776 F.3d 52, 56 (1st
Cir. 2015) ("The exhaustion requirement is satisfied where . . .
the agency chooses to address the merits of a particular issue,
regardless of whether the alien raised that issue.").

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the BIA and his petition to this court both discuss his purported
mistaken belief in the validity of his LPR status, they do so for
entirely different purposes -- to the BIA to prove he lacked any
intent to deceive, and in his petition to this court to contend
the government is estopped from bringing proceedings against him.
Third, Pérez Batres never argued detrimental reliance before the
BIA. 3
"Because [Pérez Batres] did not raise [his equitable
estoppel] claim before the BIA, we do not have jurisdiction to
review it here." Paiz-Morales v. Lynch, No. 14-1182, ___ F.3d
___, 2015 WL 4560270, at *1 n.1 (1st Cir. July 29, 2015) (citing
Shah v. Holder, 758 F.3d 32, 37 (1st Cir. 2014)). INA § 242(d)(1)
provides that "[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." 8 U.S.C. § 1252(d)(1). "We
have interpreted this statute to mean that theories not advanced
before the BIA may not be surfaced for the first time in a petition
for judicial review of the BIA's final order." Makhoul v.
Ashcroft, 387 F.3d 75, 80 (1st Cir. 2004). We apply the exhaustion
requirement "not only to claims omitted from an appeal to the BIA
3 Nor could he. See Costa, 233 F.3d at 38 n.7 (explaining
that "in order for there to be detrimental reliance, the aggrieved
party must show that he has surrendered a right that he possessed"
(citing Heckler v. Cmty. Health Servs., 467 U.S. 51, 61-62
(1984))).

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but also to claims that were insufficiently developed before the
BIA." Sunoto v. Gonzales, 504 F.3d 56, 59 (1st Cir. 2007)
(internal citations and quotation marks omitted).
The exhaustion requirement applies to equitable estoppel
claims raised for the first time on appeal. See DeCosta v.
Gonzales, 449 F.3d 45, 49-50 (1st Cir. 2006) (declining to consider
the petitioner's equitable estoppel and equitable tolling claims
because she failed to raise them before the BIA); cf. Bowles v.
Russell, 551 U.S. 205, 214 (2007) ("[T]his Court has no authority
to create equitable exceptions to jurisdictional
requirements . . . .").
The Supreme Court's decision this past Term in Mata v.
Lynch, 135 S. Ct. 2150 (2015), does not change the outcome of this
case. Mata involved a petition to review the BIA's denial as
untimely of a motion to reopen removal proceedings. Id. at 2153-
54. The Fifth Circuit -- breaking with every other circuit that
reviews removal orders -- declined to exercise jurisdiction. Id.
at 2154. The Supreme Court held that 8 U.S.C. § 1252(a)(1), which
gives courts of appeals jurisdiction to review final removal
orders, includes jurisdiction over motions to reopen that the BIA
denied as untimely. Id. at 2154-55. Mata did not involve the
provision in question here, 8 U.S.C. § 1252(d)(1), which
specifically provides that courts can review final orders "only if
the alien has exhausted all administrative remedies," thereby

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depriving courts of jurisdiction to hear unexhausted claims. See
Joumaa v. Gonzales, 446 F.3d 244, 246 (1st Cir. 2006). Therefore,
Mata is inapposite to Pérez Batres's case, as he failed to exhaust
his equitable estoppel argument with the BIA. 4
III.
For the reasons stated above, we dismiss Pérez Batres's
petition.
4 Nor does the Supreme Court's decision in United States v.
Kwai Fun Wong, 135 S. Ct. 1625 (2015), apply here. Kwai Fun Wong
involved interpretation of the Federal Tort Claims Act (FTCA).
Looking at the text, context, and legislative history of the FTCA,
the Court concluded that the statute of limitations was not
jurisdictional. Id. at 1632-33. Neither Kwai Fun Wong nor Mata
involved exhaustion.

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