Omari v. Holder

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

March 4, 2009

No. 07-60814 Charles R. Fulbruge III

Clerk

JOHN NYAKUNDI OMARI

Petitioner

v.

ERIC H HOLDER, JR, U S ATTORNEY GENERAL

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

Before GARWOOD, DENNIS, and PRADO, Circuit Judges.

PRADO, Circuit Judge:

An Immigration Judge found Petitioner John Nyakundi Omari removable,

but granted him a discretionary cancellation of removal. The Government

appealed this decision to the Board of Immigration Appeals, which reversed the

IJ and ordered Omari removed to Kenya. Omari now petitions this court to

vacate the BIA’s order on four separate grounds. But Omari has never properly

presented any of the issues he now raises to the BIA, despite the opportunity to

do so. As 8 U.S.C. § 1252(d) requires that a petitioner exhaust all administrative

remedies available as of right for this court to have jurisdiction over an issue,

Omari’s failure to raise these issues before the BIA jurisdictionally bars us from

addressing them.

No. 07-60814

Ordinarily, such a failure to raise an issue before the BIA would end our

inquiry. But Omari makes two arguments that warrant consideration. First,

he asserts that he effectively—if not explicitly—raised all pertinent issues before

the BIA, such that the BIA had adequate notice to satisfy exhaustion. Second,

Omari alternatively asks that we excuse his failure to exhaust. We find both

arguments unavailing; allowance of “effective” exhaustion runs contrary to the

purposes of § 1252(d), and, at least after the Supreme Court’s decision in Bowles

v. Russell, 127 S. Ct. 2360, 2364–66 (2007), we do not have the authority to

excuse Omari’s failure to comply with a statutory jurisdictional mandate.

We therefore dismiss Omari’s petition for lack of jurisdiction. As our

decision turns on a procedural stumble committed in his second appeal to the

BIA, we set forth the history of Omari’s case in some detail.

I. FACTUAL AND PROCEDURAL BACKGROUND

Omari came to the United States as a student in 1986 and soon became a

lawful permanent resident. He later pleaded guilty to two unrelated criminal

offenses: a Minnesota misdemeanor charge of fifth-degree assault (the

“Minnesota assault conviction”) and a federal charge of conspiracy to transport

stolen goods in interstate commerce (the “federal conspiracy conviction”). The

Government began removal proceedings against Omari and issued him a Notice

to Appear, eventually asserting three separate grounds for removal: (1) his

federal conspiracy conviction was an aggravated felony, see 8 U.S.C.

§ 1227(a)(2)(A)(iii); (2) his Minnesota assault conviction was a crime of domestic

violence, see 8 U.S.C. § 1227(a)(2)(E)(i); and (3) both his Minnesota assault and

federal conspiracy convictions were crimes involving moral turpitude, see 8

U.S.C. § 1227(a)(2)(A)(ii). Omari contested his removability and also applied for

cancellation of removal. See 8 U.S.C. § 1229b(a). An IJ found Omari removable

on the ground that his federal conspiracy conviction constituted an aggravated

felony and did not address the other grounds for removal or Omari’s request for

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cancellation. The BIA later affirmed the IJ’s decision.

Omari petitioned this court to review the BIA’s order. Finding that the

record did not establish that Omari had committed an aggravated felony, we

vacated the BIA’s order and remanded the case for further proceedings. See

Omari v. Gonzales, 419 F.3d 303, 309–10 (5th Cir. 2005) (Omari I).

On remand, the IJ still found Omari removable but ultimately determined

that he merited cancellation of removal. The IJ first concluded that, despite the

additional evidence the Government had introduced on remand, Omari still had

not been convicted of an aggravated felony. The IJ instead found Omari

removable as an alien convicted of a crime of domestic violence and,

alternatively, as an alien convicted of two or more crimes involving moral

turpitude. Turning to Omari’s application for cancellation of removal, however,

the IJ weighed the equities and concluded that Omari merited cancellation.

The Government appealed the IJ’s decision to the BIA, disputing the IJ’s

determination that Omari had not been convicted of an aggravated felony as well

as the IJ’s discretionary grant of cancellation. Omari did not file an appeal from

the IJ’s decision, but he did file a response brief that similarly focused on the

aggravated felony and cancellation issues. The BIA agreed with the IJ that

Omari had not been convicted of an aggravated felony but reversed the IJ’s

conclusion that Omari merited cancellation of removal. The BIA determined

that the equities did not weigh in Omari’s favor and noted a potential child

support arrearage of $10,000. The BIA thus vacated the IJ’s decision, denied

Omari’s application for cancellation of removal, and remanded the case to the IJ

for entry of an order of removal.

Omari moved the BIA to reconsider its decision. See 8 C.F.R. § 1003.2(b).

In his motion for reconsideration, Omari argued, inter alia, that (1) he was not

removable because his Minnesota assault conviction was neither a crime of

domestic violence nor a crime involving moral turpitude, (2) the BIA had

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No. 07-60814

erroneously found him to owe $10,000 in unpaid child support, and (3) the BIA

failed to give proper weight to factors meriting discretionary cancellation of

removal. The BIA denied this motion. It first noted that Omari had failed to

address his Minnesota assault conviction on appeal and could not do so for the

first time in a motion for reconsideration. Second, the BIA refused to consider

new evidence concerning Omari’s child support obligations, noting that a motion

for reconsideration was not the proper avenue for addressing new evidence.

Third, the BIA concluded that Omari provided no reasons for reversing its

determination that he did not merit cancellation. Finally, insofar as Omari’s

motion could be considered one to reopen based on evidence of his actual child

support obligations, see 8 C.F.R. § 1003.2(c), the BIA found that Omari had failed

to show that this evidence was previously unavailable or that it demonstrated

a reasonable likelihood of success on the merits. The BIA thus ordered Omari

removed to Kenya.

Omari now petitions this court to vacate the BIA’s order of removal.

Omari raises four arguments on appeal: (1) his Minnesota assault conviction is

neither a crime of domestic violence nor a crime involving moral turpitude,

(2) his federal conspiracy conviction is not a crime involving moral turpitude,

(3) the BIA engaged in impermissible factfinding, and (4) the court should

remand the case for a determination of whether he is eligible for waiver of

removal under 8 U.S.C. § 1182(h).

II. JURISDICTION

A. Actual Exhaustion

As always, we have jurisdiction to determine our own jurisdiction. Omari

I, 419 F.3d at 306. And although we generally have jurisdiction to review final

orders of removal, 8 U.S.C. § 1252(a)(1), under 8 U.S.C. § 1252(d), we “may

review a final order of removal only if . . . the alien has exhausted all

administrative remedies available to the alien as of right.” Petitioners fail to

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No. 07-60814

exhaust their administrative remedies as to an issue if they do not first raise the

issue before the BIA, either on direct appeal or in a motion to reopen. See

Heaven v. Gonzales, 473 F.3d 167, 177 (5th Cir. 2006); Wang v. Ashcroft, 260

F.3d 448, 452–53 (5th Cir. 2001). This exhaustion requirement applies to all

issues for which an administrative remedy is available to a petitioner “as of

right.” Arce-Vences v. Mukasey, 512 F.3d 167, 172 (5th Cir. 2007). A remedy is

available as of right if (1) the petitioner could have argued the claim before the

BIA, and (2) the BIA has adequate mechanisms to address and remedy such a

claim. See Toledo-Hernandez v. Mukasey, 521 F.3d 332, 334 (5th Cir. 2008);

Falek v. Gonzales, 475 F.3d 285, 291 (5th Cir. 2007). Since exhaustion in this

context is a statutory (rather than prudential) mandate, failure to exhaust an

issue deprives this court of jurisdiction over that issue. Wang, 260 F.3d at 452;

see also Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004) (per curiam).

1. Minnesota Assault Conviction

Omari did not appeal the IJ’s determination that his Minnesota assault

conviction was a crime of domestic violence and a crime involving moral

turpitude. Moreover, Omari did not challenge this determination in his brief

before the BIA. His failure to do so is a failure to exhaust, jurisdictionally

barring us from addressing the merits.

Granted, Omari did raise the issues regarding his Minnesota assault

conviction in his motion for reconsideration, but we find this insufficient to

satisfy § 1252(d). “A motion to reconsider challenges the [BIA]’s original decision

and alleges that it is defective in some regard.” In re O-S-G, 24 I. & N. Dec. 56,

57 (BIA 2006); see also 8 C.F.R. § 1003.2(b)(1) (“A motion to reconsider shall

state the reasons for the motion by specifying the errors of fact or law in the

prior [BIA] decision . . . .”). A motion for reconsideration is thus confined to the

substance of the BIA’s original decision. It is not the proper avenue for raising

new issues or arguments, and “[a] motion to reconsider based on a legal

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No. 07-60814

argument that could have been raised earlier in the proceedings will be denied.”

O-S-G, 24 I. & N. Dec. at 58. Instead, the party bringing a motion for

reconsideration “must specify the factual and legal issues raised on appeal that

were decided in error or overlooked in [the BIA’s] initial decision.” Id. (emphasis

added). In short, an issue raised for the first time in a motion for

reconsideration that could have been raised earlier has not been properly

presented to the BIA. We therefore hold that improperly raising an issue for the

first time in a motion for reconsideration does not satisfy § 1252(d)’s exhaustion

requirement.

Because Omari did not initially raise any issues regarding his Minnesota

assault conviction in his brief to the BIA and the BIA did not address them in its

order, Omari’s arguments regarding his Minnesota assault conviction were not

the proper subject of a motion for reconsideration. As such, they were never

properly raised before the BIA. Omari has therefore failed to exhaust his

administrative remedies as to these issues, and § 1252(d) jurisdictionally bars

us from addressing them.

2. Federal Conspiracy Conviction

Similarly, Omari neither appealed nor briefed the IJ’s conclusion that his

federal conspiracy conviction was a crime involving moral turpitude. Indeed,

Omari never addressed this issue—even improperly—before the BIA. Omari has

therefore failed to exhaust his administrative remedies as to this issue, and

§ 1252(d) jurisdictionally bars us from addressing it.

3. Cancellation

Omari contends that, in overturning the IJ’s grant of cancellation of

removal, the BIA committed legal error by making its own factual findings

instead of properly deferring to those of the IJ. As this argument alleges a legal

error in the BIA’s decision, Omari necessarily did not address this issue in his

initial brief to the BIA. Still, Omari raises this issue for the first time before this

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No. 07-60814

court, and the BIA has never had the chance to address it. This court and others

have previously held (albeit in unpublished decisions) that certain allegations

of BIA error must first be brought to the BIA in a motion for reconsideration.

See Rivas de Williams v. Gonzales, 239 F. App’x 46, 48 (5th Cir. 2007) (per

curiam); Manan v. Gonzales, 131 F. App’x 12, 15 (3d Cir. 2005). Of particular

relevance, the Tenth Circuit has held that allegations of impermissible

factfinding by the BIA must first be brought before the BIA in a motion for

reconsideration to satisfy exhaustion. See Sidabutar v. Gonzales, 503 F.3d 1116,

1122 (10th Cir. 2007). Along these lines, Omari could have brought his

allegation of impermissible factfinding before the BIA in his motion for

reconsideration, and we conclude that his failure to do so constitutes a failure to

exhaust the issue.

This holding comports with our decisions on the necessity of raising new

claims in a motion to reopen. We have “previously held that when a petitioner

seeks to raise a claim not presented to the BIA and the claim is one that the BIA

has adequate mechanisms to address and remedy, the petitioner must raise the

issue in a motion to reopen prior to resorting to review by the courts.” Toledo-

Hernandez, 521 F.3d at 334 (quotation marks and alteration omitted); see also

Roy, 389 F.3d at 137; Wang, 260 F.3d at 453; Goonsuwan v. Ashcroft, 252 F.3d

383, 388 (5th Cir. 2001). In Toledo-Hernandez, for example, the petitioner

asserted for the first time before this court that the vacatur of his criminal

conviction mandated the vacatur of his order of removal. 521 F.3d at 334. The

petitioner explained that he never asked for such relief before the BIA because

the vacatur of his criminal conviction occurred beyond the time in which he could

file a motion to reopen. Id. We recognized that, because any resort to the BIA

would have been untimely, the only way that the BIA could address the

petitioner’s new claim would be through an exercise of its sua sponte authority

to reopen a case for exceptional circumstances. Id. at 335. We also

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No. 07-60814

acknowledged that a motion to reopen was not generally required to satisfy

§ 1252(d). Id. at 336. But we held that the BIA’s sua sponte authority was an

available and adequate mechanism for the BIA to first address the petitioner’s

claim. Id. As such—and despite the seeming-contradiction of asking the BIA to

act sua sponte, see Wang, 260 F.3d at 453—we required that a petitioner first

present an issue to the BIA through a motion to reopen for exceptional

circumstances for that issue to be exhausted, Toledo-Hernandez, 521 F.3d at 336.

The same reasoning applies to motions for reconsideration. A motion for

reconsideration specifies the errors of fact or law in a prior decision. See 8 C.F.R.

§ 1003.2(b)(1). Such a motion is an available and adequate mechanism for the

petitioner to argue, and the BIA to correct, any errors that arise in a BIA

decision. This is not to say that a motion for reconsideration is generally

required for exhaustion; if a party disagrees with the BIA’s resolution of an issue

previously raised before the BIA, there is no need to reargue this issue in a

motion for reconsideration. But where the BIA’s decision itself results in a new

issue and the BIA has an available and adequate means for addressing that

issue, a party must first bring it to the BIA’s attention through a motion for

reconsideration.

The issue Omari now raises regarding the BIA’s decision illustrates the

reasons for this requirement. Omari asserts that the BIA contravened its own

regulations by engaging in impermissible factfinding when denying his request

for cancellation of removal. He thus asserts that the BIA committed a legal

error in its decision. This error involves an issue stemming from the BIA’s act

of decisionmaking, and was one that neither party could have possibly raised

prior to the BIA’s decision. But after the BIA issued its decision, Omari could

have argued to the BIA that it had engaged in impermissible factfinding in his

motion for reconsideration. In other words, Omari had an available and

adequate means of presenting this argument to the BIA before bringing it to this

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No. 07-60814

court, and § 1252(d) requires that he avail himself of it. If the BIA had found

Omari’s argument meritorious, it could have corrected this error. Yet Omari did

not make this argument in his motion for reconsideration. Although he did

argue that the BIA erred in finding that he owed more than $10,000 in child

support, this argument challenged only the record support for the finding and

not the act of factfinding itself. Thus, Omari never raised the issue of

impermissible factfinding before the BIA. Because Omari has failed to exhaust

his administrative remedies as to this issue, § 1252(d) jurisdictionally bars us

from addressing it.

4. Waiver of Removal Under 8 U.S.C. § 1182(h)

Omari seeks, as an alternative form of relief, to have this case remanded

for consideration of his claim that he should be granted a waiver of

inadmissibility under 8 U.S.C. § 1182(h). Omari did not raise this issue before

the BIA in his brief or motion for reconsideration. Again, Omari failed to

exhaust this issue and we therefore lack jurisdiction to address it.

B. Effective Exhaustion

Omari asserts that, despite the lack of any explicit mentioning of the

present issues to the BIA, he effectively exhausted his claims. He argues that

the issues he briefed before and discussed with the IJ and the BIA were

sufficient to give the BIA adequate notice that he disputed the grounds of

removability. Moreover, Omari contends that some of the issues he now raises

overlap with one he did address in his brief to the BIA, namely, the argument

that his federal conspiracy conviction was not an aggravated felony. Omari thus

suggests that, even if he did not explicitly state his contention with all of the

alternative grounds upon which the IJ eventually found him removable, the BIA

had sufficient notice of—and opportunities to address—the issues he now raises.

We disagree, and take this opportunity to emphasize that parties must

fairly present an issue to the BIA to satisfy § 1252(d)’s exhaustion requirement.

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Such a requirement has been an implicit necessity of our prior decisions.

Though rarely a point of emphasis, our cases on § 1252(d) have continually

stated that a petitioner must “raise,” “present,” or “mention” an issue to the BIA

to satisfy exhaustion. See, e.g., Toledo-Hernandez, 521 F.3d at 335; Heaven, 473

F.3d at 177; Roy, 389 F.3d at 137; Wang, 260 F.3d at 452–53; Goonsuwan, 252

F.3d at 388. Implicit in these repeated statements is the suggestion that

§ 1252(d) requires some affirmative action on the part of a party. Such a reading

is reinforced by those marginal cases where the sufficiency of raising an issue

has been contested. In Carranza-de Salinas v. Gonzales, 477 F.3d 200, 206–07

(5th Cir. 2007), for example, we held that a petitioner sufficiently exhausted an

issue by presenting it in a less-developed form to the BIA. Similarly, in Burke

v. Mukasey, 509 F.3d 695, 696 (5th Cir. 2007) (per curiam), we held that a pro

se petitioner’s general argument to the BIA—that his conviction for possession

of stolen property was not an aggravated felony—embraced the slightly more

specific question of whether his conviction was a “theft offense.” And in Hongyok

v. Gonzales, 492 F.3d 547, 550 (5th Cir. 2007), we held that a semantic difference

in the framing of an issue before this court and before the BIA did not raise any

significant question of whether the issue was exhausted. In these cases, the

petitioners made some concrete statement before the BIA to which they could

reasonably tie their claims before this court. Omari, in contrast, has not. His

failure to fairly present the issues he now brings on appeal constitutes a failure

to exhaust.

Such a requirement is not needlessly technical or formalistic. Indeed,

requiring the fair presentation of a contested issue is sound policy. First,

requiring actual (as opposed to effective) exhaustion allows for efficient

adjudication of immigration claims. One of the purposes of § 1252(d)’s

exhaustion requirement is to provide the BIA, the agency with the expertise in

immigration matters, with the opportunity to address immigration issues in the

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No. 07-60814

first instance. See Toledo-Hernandez, 521 F.3d at 334; Zhang v. Ashcroft, 388

F.3d 713, 721 (9th Cir. 2004) (per curiam). An essential aspect of this purpose

is providing the BIA with adequate notice of those issues it should address. See

Figueroa v. Mukasey, 543 F.3d 487, 492 (9th Cir. 2008); Zhang, 388 F.3d at 721;

Zara v. Ashcroft, 383 F.3d 927, 931 (9th Cir. 2004). Accepting Omari’s claims of

effective exhaustion would shift some of the burden of identifying contested

issues from the parties to the BIA. And requiring the BIA to divine from the

record all potentially-disputed issues would place a significant burden on the

agency. Perhaps wary of leaving any issue unaddressed, the BIA might waste

resources combing a petitioner’s file and addressing issues that the parties had

accepted as lost. The parties are in a better position than the BIA to identify all

issues that they contest, and placing the burden of raising those issues on the

parties provides an appropriate incentive.

Further, the fact that Omari raised some of these issues before the IJ but

not the BIA is inadequate to satisfy § 1252(d)’s exhaustion requirement, as is the

fact that he ultimately prevailed before the IJ. The IJ determined that Omari

was removable as a threshold matter but then granted a discretionary

cancellation of removal. We should neither expect nor desire that Omari appeal

the IJ’s threshold adverse determinations in spite of his ultimate victory. But

after the government appealed the case to the BIA, Omari could have addressed

these threshold issues in his brief. Omari’s ultimate victory before the IJ did not

alter the IJ’s underlying conclusion that he was removable, and Omari should

have realized that he was still subject to removal if the BIA reversed the IJ’s

discretionary grant of cancellation. We could view this situation through the

legal fiction that Omari effectively conceded the correctness of the IJ’s

conclusions on these issues when he failed to contest them before the BIA.

Perhaps more realistically, neither the parties nor the BIA are likely to have

thought about addressing these underlying issues of removability. The question

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thus becomes one of how best to give notice to the BIA that it should address a

particular issue. Again, the more efficient way of doing this is placing the onus

of raising issues on the parties.

Thus, in the interests of efficient adjudication, we refuse to saddle the BIA

with the burden of identifying the substance of an immigration appeal. This is

not to preclude the BIA from raising issues that the parties have seemingly

abandoned, and should the BIA choose to do so, our exhaustion inquiry might be

much different. See Lin v. Attorney Gen., 543 F.3d 114, 122–26 (3d Cir. 2008)

(discussing the circuit split on this issue). But claims that parties have

effectively placed the BIA on notice that they contest an issue, even though they

never actually stated as much to the BIA, have no place in our § 1252(d)

exhaustion analysis. Instead, parties must fairly present their contentions to

the BIA to satisfy exhaustion.

We note parenthetically that we expressly decline to address the specific

question of how extensively a petitioner must raise an issue to satisfy § 1252(d).

As much as we would like to provide guidance on this issue, Omari’s case does

not present sufficient facts that would adequately frame it for decision.

C. Excusing Exhaustion

Alternatively, Omari asks this court to excuse his failure to exhaust. He

first suggests that our jurisdiction over legal and constitutional issues in the

immigration context necessarily extends to the issues he now raises on appeal.

Omari also attempts to invoke purported “exceptions” to § 1252(d)’s exhaustion

requirement. Finally, Omari suggests that equity warrants excusing his failure

to exhaust. We find each of these claims unavailing.

Omari first asserts that this court has jurisdiction over issues concerning

his removability because review of the BIA’s decision includes review of all

factual and legal conclusions on which the order is contingent, including the

asserted grounds for deportation. But this cannot be correct, for such an

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interpretation of our jurisdiction would nullify § 1252(d)’s exhaustion

requirement. That is, inherent jurisdiction over all legal issues underlying a

BIA order would mean that a party’s failure to exhaust these issues before the

BIA would never bar this court from addressing them. Omari’s suggestion of

plenary and unconstrained appellate review in this court simply cannot coexist

with § 1252(d)’s exhaustion requirement. And as Congress did not give us a

general grant of jurisdiction over immigration appeals—much less the suggested

plenary review—the fact that issues of Omari’s removability underlie the BIA’s

order in no way excuses the necessity of exhaustion.

Omari’s invocation of purported “exceptions” to § 1252(d) is similarly

inapposite. Granted, we have sometimes spoken of “exceptions” to § 1252(d)’s

exhaustion requirement. In Goonsuwan, for example, we stated, “Even when

exhaustion is a jurisdictional bar, this Court recognizes an exception ‘when

administrative remedies are inadequate.’” 252 F.3d at 389 (quoting Ramirez-

Osorio v. INS, 745 F.2d 937, 939 (5th Cir. 1984)). Later cases have emphasized,

however, that for a remedy to be available “as of right” and thus fall under

§ 1252(d)’s exhaustion requirement, the BIA must have adequate mechanisms

to address and remedy the claim. See, e.g., Toledo-Hernandez, 521 F.3d at 334;

Arce-Vences, 512 F.3d at 172. These “exceptions” to § 1252(d), then, are more

appropriately characterized as situations in which § 1252(d)’s exhaustion

requirement does not even apply because the particular relief is not available as

of right.

This construction of § 1252(d) indicates that all of the issues Omari now

raises fall squarely within its exhaustion requirement. The BIA had adequate

mechanisms to address and remedy all of these issues. Moreover, Omari had a

full and fair opportunity to present each of these issues to the BIA before raising

them in his present petition. And there is no evidence of bias against Omari nor

any indication that the BIA would not have fairly considered his claims. In

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short, Omari could have made all of his present arguments to the BIA before

petitioning this court for review. He did not, and his failure to do so is a failure

to exhaust.

Finally, Omari has given us no reason to equitably excuse the exhaustion

requirement. His failure to exhaust was not due to any third party’s conduct or

external circumstance. It was instead solely of his own doing, and none of our

prior decisions would mandate excusing his failure to exhaust. In any event, we

lack the authority to fashion a general equitable exception to § 1252(d)’s

exhaustion requirement. In its recent decision in Bowles v. Russell, 127 S. Ct.

2360, 2364–66 (2007), the Supreme Court emphasized that there is a distinction

between preconditions to appeal that are simply mandatory and those that are

mandatory and jurisdictional. The former are those created by court rule or

judicial decision, while the latter stem from jurisdictional limitations that

Congress has statutorily created. Id. at 2365; see also United States v. Martinez,

496 F.3d 387, 388–89 (5th Cir.) (per curiam), cert denied, 128 S. Ct. 728 (2007).

Thus, the Bowles Court held that Federal Rule of Appellate Procedure 4(a)(6)’s

limit on reopening the time for filing a notice of appeal was a mandatory and

jurisdictional requirement because it implemented 28 U.S.C. § 2107(c). 127 S.

Ct. at 2363. Failure to comply with the statutory requirement embodied in Rule

4(a)(6), then, deprives a court of jurisdiction. Id. at 2366. In line with Bowles,

we have held that Federal Rule of Appellate Procedure 4(b)(1)(A)’s time limit for

filing notices of appeal in criminal cases is mandatory, but not jurisdictional,

because it does not effectuate a statutorily-imposed limit. Martinez, 496 F.3d at

388–89.

The distinction between those requirements that are mandatory and those

that are mandatory and jurisdictional is important because, according to the

Bowles Court, we have “no authority to create equitable exceptions to

jurisdictional requirements.” 127 S. Ct. at 2366. While we can invoke doctrines

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such as waiver or equitable excuse when a party fails to comply with judicially-

created prudential preconditions to appeal, we cannot create our own exceptions

to a jurisdictional bar that Congress—within the bounds of its constitutional

authority—has explicitly set out in a statute.

Three circuits have recently examined § 1252(d) in light of Bowles. In

Grullon v. Mukasey, 509 F.3d 107, 114 (2d Cir. 2007), cert denied, 129 S. Ct. 43

(2008), a petitioner asked the Second Circuit to excuse his failure to exhaust in

light of the “manifest injustice” that would stem from dismissal. Though

recognizing the potential merits of the petitioner’s request, the court held that

there was “no ‘manifest injustice’ exception to § 1252(d)’s exhaustion

requirement” after Bowles. Id. at 115. According to the Second Circuit, “Bowles

broadly disclaims the authority of the federal courts to create equitable

exceptions to jurisdictional requirements.” Id. at 116 (quotation marks omitted).

Similarly, in Bah v. Mukasey, 521 F.3d 857, 859 (8th Cir. 2008), the Eighth

Circuit relied on Bowles in refusing to create a futility exception to § 1252(d).

And in Massis v. Mukasey, 549 F.3d 631, 640 (4th Cir. 2008), the Fourth Circuit

invoked Bowles in holding that there was no “miscarriage of justice” exception

to § 1252(d). According to these circuits, courts cannot “create an equitable

exception to [§ 1252(d)]’s exhaustion requirement.” Id.

We agree, and hold that we lack the authority to equitably excuse a party’s

failure to satisfy § 1252(d)’s exhaustion requirement. For this court to have

jurisdiction over an issue that the BIA has adequate means of addressing, a

petitioner must adequately raise that issue before the BIA. So long as it remains

a statutory jurisdictional bar without any allowance of exceptions, compliance

with § 1252(d) is necessary. We therefore have no authority to excuse Omari’s

failure to exhaust.

We recognize that our ruling imposes a strict exhaustion requirement on

those petitioning this court to review a BIA order. We could brush off any

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concerns over this strictness by noting, as the Supreme Court did in Bowles, that

“[i]f rigorous rules like the one applied today are thought to be inequitable,

Congress may authorize courts to promulgate rules that excuse compliance.”

127 S. Ct. at 2367. But we think it better to suggest that such a construction

makes sound jurisdictional sense. Our ruling should increase the likelihood that

claims will be adequately addressed at the administrative level, rendering resort

to this court unnecessary. In those cases that do come to our court, the

arguments will likely be better refined in light of their presentation to and

resolution by the BIA. And perhaps most importantly, today’s ruling provides

clear guidance to those proceeding before the BIA of the necessity of exhaustion,

such that they will be able to avoid the pitfalls that prevent us from addressing

the merits of the present petition.

III. CONCLUSION

Regarding the issues that he now petitions this court to address, Omari

has failed to exhaust all administrative remedies available to him as of right.

Because this failure to exhaust deprives this court of jurisdiction, we DISMISS

Omari’s petition for review.

DISMISSED.

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