[PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 20-13129 ____________________ RAINEY MUOKA MUTUA, Petitioner, versus U.S. ATTORNEY GENERAL,

Respondent.

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Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A214-236-103 ____________________ USCA11 Case: 20-13129 Date Filed: 01/05/2022 Page: 2 of 13

20-13129 Opinion of the Court 2 Before WILSON, LAGOA, Circuit Judges, and MARTINEZ,* District Judge. MARTINEZ, District Judge: Petitioner Rainey Muoka Mutua, a native and citizen of Kenya, seeks review of the final order issued by the Board of Immi- gration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) discretionary denial of Mutua’s application for adjustment of sta- tus. In his petition, Mutua argues that the IJ erred by holding him to an improperly high burden of proof when considering whether he was entitled to a favorable exercise of discretion. Mutua also argues that the BIA erred by applying the wrong standard of review to the IJ’s determination, and that it misinterpreted its own regula- tions on administrative notice. Lastly, he argues that the BIA erred by not referring his appeal to a three-member panel because his case involved complex, novel, or unusual issues of law. The government, in turn, contends that we lack jurisdiction over Mutua’s issues challenging the burden of proof applied by the IJ and standard of review applied by the BIA, and we should dismiss his petition in that respect. As to the other issues regarding admin- istrative notice and referral to a three-member panel, the govern- ment asserts that the BIA did not abuse its discretion and urges us to deny Mutua’s petition. After reviewing the record and reading

*Honorable Jose E. Martinez, United States District Judge for the Southern District of Florida, sitting by designation. USCA11 Case: 20-13129 Date Filed: 01/05/2022 Page: 3 of 13

20-13129 Opinion of the Court 3 the parties’ briefs, we agree with the government and dismiss in part and deny in part Mutua’s petition for review. I. Background Mutua, a native and citizen of Kenya, was admitted into the United States as a non-immigrant temporary visitor for business. He was authorized to remain in the country for about three months but did not depart in January 2006 as his visa required. In 2008, Mutua married a United States citizen. About eight years later, Mutua applied for an adjustment status. Nearly one year later, the Department of Homeland Security (“DHS”) denied Mu- tua’s application because he had criminal charges pending against him. In January 2018, Mutua re-submitted his adjustment applica- tion, but DHS denied it again for the same reasons. The pending criminal charges arise from an alleged sexual assault that occurred in August 2013, while Mutua and several fam- ily members vacationed in South Carolina. After the vacation, Mu- tua’s sister-in-law filed a report with the police stating that Mutua had sexually assaulted her eleven-year-old daughter. In response to the report, the police opened an investigation and arrested Mu- tua in September 2015, charging him with engaging in criminal sex- ual conduct with a child in the second degree. See S.C. Code Ann. § 16-2-655(B)(1). The case proceeded to trial and resulted in a hung jury. The state dismissed the charge against Mutua because the victim and her family did not want to endure another trial. When the