Lawrence Karisa Kithongo v. MERRICK B. GARLAND , Attorney General of the United States

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21‐2662
LAWRENCE KARISA KITHONGO ,
Petitioner,
v.
MERRICK B. G ARLAND ,
Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A216‐406‐099
____________________
A RGUED MARCH 31, 2022 — D ECIDED MAY 9, 2022
____________________
Before MANION, H AMILTON, and BRENNAN, Circuit Judges.
BRENNAN, Circuit Judge. Lawrence Kithongo is a Kenyan
citizen who overstayed his authorized period in the United
States and now faces removal for committing a “particularly
serious crime.” An immigration judge denied his applications
for adjustment of status, withholding of removal, and relief
under the Convention Against Torture (“CAT”). He asks this
court to review those decisions. For the reasons discussed

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2 No. 21‐2662
below, we dismiss the first two applications for lack of juris‐
diction, and we deny the third on exhaustion grounds.
I
Kithongo was born and raised in Kenya. He alleges he and
his family endured several hardships during his childhood
there. For example, Kithongo states that his father was regu‐
larly harassed and intimidated for political and religious rea‐
sons. This harassment was not always limited to his father;
Kithongo says he too endured verbal and physical harass‐
ment, which resulted in a stab wound on one occasion and a
broken arm on another.
Kithongo also claims he watched a police officer murder
one of his friends during the political unrest following the
2007 Kenyan national election. Out of concern for his safety,
Kithongo moved to his grandmother’s house and assumed a
new name. His grandmother then arranged for him to work
for a company of acrobats so that he would be able to travel
outside the country. Four years later, at age 19, Kithongo was
admitted into the United States on a P1 nonimmigrant per‐
former visa. He has not left the United States in the last 11
years, and he has overstayed his period of authorization since
May 2017. He is now 31 years old and married with children.
Although still a Kenyan citizen, Kithongo wishes to remain in
the United States.
Over the last seven years, Kithongo has been convicted of
misdemeanors for battery, theft, and marijuana possession.
Most recently, he was convicted for conspiring with others to
rob three victims, two of whom were children. Although
Kithongo did not commit the robbery himself, he knowingly
accompanied his co‐conspirators to the scene of the crime,

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No. 21‐2662 3
likely aware that one of them was carrying a firearm. The rob‐
bery was violent. One child victim was struck in the head with
the firearm, while the other’s head and neck were pinned
against the seat of a car. Kithongo was convicted in Indiana
state court of felony conspiracy to commit robbery and sen‐
tenced to one year in prison on September 3, 2019. 1
After Kithongo completed his sentence, the Department of
Homeland Security served him with a notice to appear, charg‐
ing him with removability under 8 U.S.C. §§ 1227(a)(1)(B),
(a)(2)(A)(iii) for having an aggravated felony conviction. At
Kithongo’s first removal hearing, the immigration judge de‐
termined that his conviction for conspiracy to commit robbery
was an aggravated felony. Nevertheless, the judge permitted
Kithongo to explore avenues of relief from removal. A month
later, Kithongo applied for withholding of removal and relief
under the CAT. At a hearing in October 2020, Kithongo “for‐
mally admitted all five allegations in the [notice to appear],
conceded [his] removability under [8 U.S.C. § 1227(a)(1)(B),]
but denied removability under [8 U.S.C. § 1227(a)(2)(A)(iii)].”
He also denied that his conviction constituted an aggravated
1 Under Indiana Code § 35‐41‐5‐2(a), “[a] person conspires to commit
a felony when, with intent to commit the felony, the person agrees with
another person to commit the felony. A conspiracy to commit a felony is a
felony of the same level as the underlying felony.” Id. Under Indiana Code
§ 35‐42‐5‐1(a), “a person who knowingly or intentionally takes property
from another person or from the presence of another person: (1) by using
or threatening the use of force on any person; or (2) by putting any person
in fear; commits robbery, a Level 5 felony.” Id. A Level 5 felony is punish‐
able for “a fixed term of between one (1) and six (6) years, with the advi‐
sory sentence being three (3) years.” I ND . CODE § 35‐50‐2‐6(b).

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4 No. 21‐2662
felony. That December, Kithongo applied for adjustment of
status.
In February 2021, he appeared with counsel for his merits
hearing. The immigration judge heard testimony from
Kithongo, his wife, and his mother‐in‐law. The judge ulti‐
mately denied each of Kithongo’s applications: for adjust‐
ment of status, withholding of removal, and relief under the
CAT. The judge ordered Kithongo removed to Kenya.
Kithongo appealed, and the Board of Immigration Appeals
(the “Board”) affirmed the immigration judge’s decision with‐
out an opinion. Kithongo is now in the custody of Immigra‐
tion and Customs Enforcement. He petitions for review of the
Board’s affirmance of the immigration judge’s decisions.
II
The “first and fundamental question” our court must an‐
swer “is that of jurisdiction.” Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 94 (1998). “The requirement that jurisdic‐
tion be established as a threshold matter ‘spring[s] from the
nature and limits of the judicial power of the United States’
and is ‘inflexible and without exception.’” Id. at 94–95 (altera‐
tion in original) (quoting Mansfield, C. & L.M.R. Co. v. Swan,
111 U.S. 379, 382 (1884)). We begin by considering whether we
have jurisdiction to review the Board’s discretionary determi‐
nation under the Immigration and Nationality Act. See Es‐
trada‐Martinez v. Lynch, 809 F.3d 886, 891 (7th Cir. 2015). First,
we consider Kithongo’s applications for adjustment of status
and withholding of removal, and then we review his applica‐
tion for relief under the CAT, for which jurisdiction is uncon‐
tested.

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No. 21‐2662 5
A
Under 8 U.S.C. § 1255, a visa‐eligible noncitizen may seek
long‐term permanent residence in the United States by apply‐
ing for an “adjustment of status.” Id.; see Dijamco v. Wolf, 962
F.3d 999, 1001 (7th Cir. 2020). An adjustment‐of‐status deter‐
mination is committed to the discretion of the Attorney Gen‐
eral, who in turn has delegated his authority to immigration
judges, subject to review by the Board. 8 U.S.C. § 1255(a);
Hadayat v. Gonzales, 458 F.3d 659, 663 (7th Cir. 2006); 8 C.F.R.
§§ 1003.1(b)(3) & (d)(1); 8 C.F.R. § 1003.10; 8 C.F.R.
§ 1245.2(a)(1). Kithongo applied for an adjustment of status,
but his request was denied for two reasons. First, the immi‐
gration judge deemed him ineligible for an adjustment
because of his criminal history and failure to provide an affi‐
davit from a valid sponsor. Second, the judge concluded he
did not merit a favorable exercise of discretion. Kithongo dis‐
agrees, claiming that he can now provide a sponsor.
Our jurisdiction is limited by 8 U.S.C. § 1252(a)(2)(B)(i),
which states, in part, that “no court shall have jurisdiction to
review … any judgment regarding the granting of relief un‐
der section … 1255 of this title.” Id. Under this statutory
provision, we “lack jurisdiction to review a variety of agency
decisions denying discretionary relief, including an [immi‐
gration judge’s] decision to deny an application for adjust‐
ment of status.” Wroblewska v. Holder, 656 F.3d 473, 477 (7th
Cir. 2011) (citations omitted); see Pouhova v. Holder, 726 F.3d
1007, 1016 n.7 (7th Cir. 2013). This court’s “jurisdiction is not
so limited, however, when it comes to ‘constitutional claims
or questions of law’ that are related to the denial of an appli‐
cation for adjustment of status.” Wroblewska, 656 F.3d at 477

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6 No. 21‐2662
(quoting 8 U.S.C. § 1252(a)(2)(D); Jarad v. Gonzales, 461 F.3d
867, 868–69 (7th Cir. 2006)); Pouhova, 726 F.3d at 1016 n.7.
Here, the immigration judge denied Kithongo’s applica‐
tion for adjustment of status “both due to his ineligibility for
such relief … and as a matter of discretion.” The judge bal‐
anced positive factors such as the potential hardship of re‐
moval on Kithongo and his family, against negative factors
like the details of Kithongo’s criminal history. “Even if”
Kithongo “were otherwise eligible” for an adjustment, the
judge concluded he would still deny the application as a
“matter[ ] of discretion.” “Ultimately,” the immigration judge
concluded that “the negative factors in this case far out‐
weigh[ed] the positive ones.”
Because Kithongo’s application for adjustment of status
was denied in part “as a matter of discretion,” we lack juris‐
diction to review it unless he can identify a legal or constitu‐
tional issue to evaluate. He has failed to do so, therefore the
application must be dismissed.
B
Next, we examine if there is jurisdiction to review
Kithongo’s application for withholding of removal. A noncit‐
izen is entitled to withholding of removal if his “life or free‐
dom would be threatened in that country because of the
alien’s race, religion, nationality, membership in a particular
social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A); see
Tsegmed v. Sessions, 859 F.3d 480, 484 (7th Cir. 2017). There are
exceptions, though. For example, § 1231(b)(3)(B)(ii) states that
this rule does not apply if the Attorney General decides “that
the alien, having been convicted by a final judgment of a par‐
ticularly serious crime is a danger to the community of the

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No. 21‐2662 7
United States.” Id. For purposes of withholding of removal,
an aggravated felony conviction with a term of imprisonment
of at least five years is, per se, a “particularly serious crime.”
Id. § 1231(b)(3)(B).
A sentence of less than five years does not preclude the
immigration judge from determining that an applicant has
been convicted of a particularly serious crime. Id. Nor does
the offense need to be an aggravated felony for it to be partic‐
ularly serious. Id. In such cases, the judge “may examine ‘the
nature of the conviction, the type of sentence imposed, and
the circumstances and underlying facts’” of the crime to de‐
termine if the conviction is particularly serious. Estrada‐Mar‐
tinez, 809 F.3d at 889 (quoting In re N‐A‐M‐, 24 I. & N. Dec.
336, 342 (BIA 2007)). Crimes against persons, rather than
property, are more likely to qualify as particularly serious. In
re S‐V‐, 22 I. & N. Dec. 1306, 1308 (BIA 2000).
As this court has previously noted, Board precedent “ap‐
pears to support more than one method for determining
whether a crime is ‘particularly serious.’” Estrada‐Martinez,
809 F.3d at 893. In making a determination, the Board or im‐
migration judge “may use a case‐by‐case approach” or a cat‐
egorical approach. Id. at 893 (citing Ali v. Achim, 468 F.3d 462,
470 (7th Cir. 2006) (stating that it is not legal error for the
Board to apply the case‐by‐case approach)). When applying
the categorical approach, a judge considers exclusively
“whether ‘the state statute defining the crime of conviction’
categorically fits within the ‘generic’ federal definition of a
corresponding aggravated felony.” Moncrieffe v. Holder, 569
U.S. 184, 190 (2013) (citations omitted); see Estrada‐Martinez,
809 F.3d at 893. By contrast, when applying the case‐by‐case
approach, a judge considers the “actual underlying conduct

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8 No. 21‐2662
and circumstances.” See Estrada‐Martinez, 809 F.3d at 893
(quoting Moncrieffe, 569 U.S. at 190). These parties dispute
whether Kithongo’s conviction for conspiracy to commit rob‐
bery under Indiana law constitutes a particularly serious
crime.
Our jurisdiction to review this determination is limited by
8 U.S.C. § 1252(a)(2)(B)(ii), which states, in part, that:
no court shall have jurisdiction to review … any
other decision or action of the Attorney General
or the Secretary of Homeland Security the au‐
thority for which is specified under this sub‐
chapter to be in the discretion of the Attorney
General or the Secretary of Homeland Security,
other than the granting of relief under section
1158(a) of this title.
Id. Under this statute, we may review the Board’s “particu‐
larly serious crime” determination as legal error, but it is
“beyond our jurisdiction” to review whether the “Board’s de‐
cision incorrectly weighed the relevant factors.” Estrada‐Mar‐
tinez, 809 F.3d at 893–94 (citing 8 U.S.C. § 1252(a)(2)(B)(ii)).
Kithongo argues the Board and the immigration judge
committed a legal error by adopting a categorical approach
when they decided that his conviction for conspiracy to com‐
mit robbery was particularly serious. This court considered a
similar argument in Estrada‐Martinez. There, a petitioner tried
“to avoid this jurisdictional bar to our review of the Board’s
‘particularly serious crime’ determination by framing his
challenge as a legal issue.” Id. at 892. The petitioner argued
“the Board made a legal error by adopting a categorical ap‐
proach to deciding whether his statutory rape conviction was

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No. 21‐2662 9
‘particularly serious.’” Id. According to the petitioner, “the
Board failed to consider individual aspects of his conviction,”
such as the age of the victim and “the significance of his sen‐
tence of probation rather than prison time.” Id. at 892–93. The
court stated that while these were “cogent arguments for re‐
weighing the factors leading to” the Board’s determination,
the petitioner’s attempt to “frame [the] argument as a legal
error [was] not convincing.” Id. at 893. At bottom, the peti‐
tioner wanted the court to reweigh the factors, which was be‐
yond its jurisdiction. Id. at 893–94.
In this case, the immigration judge considered “the
nature” of Kithongo’s conviction, as well as “the facts and cir‐
cumstances of the case.” The judge noted that Kithongo “con‐
spired with others to rob three victims of their iPhones and a
key ring.” Although he “did not personally commit the rob‐
bery,” Kithongo “knew that his co‐conspirators planned to
rob the victims and accompanied them as they walked to the
victims’ vehicle.” Kithongo also likely knew that “one of the
co‐conspirators was carrying a firearm,” and ultimately did
“nothing to prevent” the crime. The judge concluded that the
“violent nature of the crime, the use of a firearm to strike a
victim, and the young age of the victims” all constituted
aggravating factors. He also noted that Kithongo’s limited
personal involvement was “a mitigating factor … only to a
limited extent.”
The immigration judge here applied a case‐by‐case
approach that weighed factors particular to Kithongo when
determining that his conviction constituted a “particularly se‐
rious” crime. This detailed analysis is not only consistent with
the case‐by‐case approach but also inconsistent with the cate‐
gorical approach, which considers only the statute defining

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10 No. 21‐2662
the crime of conviction. Id. at 893 (quoting Moncrieffe, 569 U.S.
at 190). Kithongo tries but fails to reframe his argument as one
of legal error. It is beyond our jurisdiction to reweigh the fac‐
tors the immigration judge considered. 8 U.S.C.
§ 1252(a)(2)(B)(ii). This application is thus also dismissed for
lack of jurisdiction.
III
Finally, we turn to Kithongo’s claim that he is eligible for
relief under the Convention Against Torture. 8 C.F.R.
§§ 1208.16, 1208.17, 1208.18. He argues the immigration judge
overlooked relevant evidence and failed to consider cumula‐
tive evidence. Although our court has jurisdiction, we need
not reach the merits of this application because he failed to
raise these arguments before the Board. Nyandwi v. Garland,
15 F.4th 836, 841–42 (7th Cir. 2021).
Under 8 U.S.C. § 1252(d)(1), “[a] court may review a final
order of removal only if … the alien has exhausted all admin‐
istrative remedies available to the alien as of right.” Id. The
exhaustion requirement “includes the obligation first to pre‐
sent to the Board any arguments that lie within its power to
address.” Lopez‐Garcia v. Barr, 969 F.3d 749, 752 (7th Cir. 2020)
(quoting FH‐T v. Holder, 723 F.3d 833, 841 (7th Cir. 2013); 8
U.S.C. § 1252(d)(1)). This requirement is a case‐processing
rule, rather than a jurisdictional requirement, which “limits
the arguments available to an alien in this court when those
arguments have not been raised properly at the agency level.”
FH‐T, 723 F.3d at 841 (citation omitted). It provides the Board
the opportunity to “apply [its] ‘specialized knowledge and
experience’ in this legal area, which then lends us ‘reasoning
to review.’” Lopez‐Garcia, 969 F.3d at 752 (quoting Minghai
Tian v. Holder, 745 F.3d 822, 826 (7th Cir. 2014)).

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No. 21‐2662 11
“To exhaust an argument and thus avoid waiver, it must
be ‘actually argued’ in the administrative proceedings.”
Nyandwi, 15 F.4th at 841 (quoting Duarte‐Salagosa v. Holder,
775 F.3d 841, 846 (7th Cir. 2014)). An argument is “actually
argued only when it puts the [Board] ‘on notice’ that the peti‐
tioner is trying to challenge the [immigration judge’s] deci‐
sion based on that argument.” Id. (citing Hamdan v. Mukasey,
528 F.3d 986, 991 (7th Cir. 2008)). In other words, “[i]t is not
enough that the new argument bears some relation to the ev‐
identiary record.” Id. (citing Duarte‐Salagosa, 775 F.3d at 846).
Here the immigration judge found that, among other
things, Kithongo “failed to provide sufficient corroborating
evidence to carry his burden of proof,” even though such
evidence was reasonably available. For example, the judge
concluded that Kithongo could have presented written state‐
ments or telephonic testimony from his parents or sister, all
of whom continue to live in Kenya and remain in contact with
him. Kithongo also could have provided documentary evi‐
dence to corroborate his claim, such as the death certificate for
his friend, the medical records from his hospitalization, or
documentation identifying his father’s political and religious
affiliations. 2 Instead, Kithongo provided only the written
2 It is common for an immigration judge to require this type of corrob‐
orative evidence. See, e.g., Weiping Chen v. Holder, 744 F.3d 527, 533–35 (7th
Cir. 2014) (denying the petition for review because the immigration judge
did not err by requiring the petitioner to provide additional corroborating
evidence such as an affidavit from his wife and other merchants familiar
with the events); see also Darinchuluun v. Lynch, 804 F.3d 1208, 1214 (7th
Cir. 2015) (stating that, in the asylum context, “an immigration judge now
enjoys substantial leeway to demand corroboration of an … applicant’s
allegations whether or not the judge finds the applicant credible” (quoting
Krishnapillai v. Holder, 563 F.3d 606, 618 (7th Cir. 2009))).

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12 No. 21‐2662
statement and testimony of his wife, who was not personally
familiar with the events from his childhood. Even though the
immigration judge found Kithongo generally credible, he de‐
termined that Kithongo “failed to adequately corroborate his
testimony and thus failed to carry his burden … under the
Convention Against Torture.”
In his brief before the Board, Kithongo argued that the im‐
migration judge “overlooked the submitted evidence sub‐
stantiating” his fear of torture. This evidence included a 2019
report from the U.S. Department of Justice, which described
the Kenyan police’s use of torture, excessive force, and forced
disappearances against government opposition. Kithongo
also points to a 2016 Quartz Africa article, which stated that a
Kenyan citizen is “five times as likely to be shot by the police
than a criminal.”
Before the Board, Kithongo failed to contest the decision
that he did not produce reasonably available corroborating
evidence to support his application. Although he argued that
the immigration judge overlooked a report and article de‐
scribing country conditions in Kenya, he never challenged the
immigration judge’s findings as to corroboration. At best,
Kithongo’s argument “bears some relation to the evidentiary
record.” Nyandwi, 15 F.4th at 841 (citing Duarte‐Salagosa, 775
F.3d at 846). Even so, this contention was not “actually ar‐
gued” because the Board was not put “on notice” that he was
challenging the immigration judge’s corroboration determi‐
nation. See id. (citing Hamdan, 528 F.3d at 991). Not raising
these issues before the Board constitutes a failure to exhaust.
As a result, Kithongo has waived his arguments for relief un‐
der the CAT, and we need not consider their merits.

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No. 21‐2662 13
IV
For these reasons, we D ISMISS for lack of jurisdiction
Kithongo’s applications for adjustment of status and with‐
holding of removal, and we D ENY his petition for review un‐
der the Convention Against Torture.

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