UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1929
CLEVELAND J. WILSON,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: September 17, 2013 Decided: September 26, 2013
Before SHEDD, DUNCAN, and WYNN, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Cleveland J. Wilson, Petitioner Pro Se. Robbin Kinmonth Blaya,
William Charles Peachey, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cleveland J. Wilson, a native and citizen of Jamaica,
petitions for review of an order of the Board of Immigration
Appeals (“Board”) dismissing his appeal from the immigration
judge’s order finding that he was removable and that he was not
eligible for asylum, withholding of removal or deferral of
removal under the Convention Against Torture (“CAT”).
Wilson was found removable for having been convicted
in a Virginia court of sale and distribution of marijuana, in
violation of Va. Code Ann. § 18.2-248 (LexisNexis Supp. 2013),
and manufacturing or distributing drugs on school property, in
violation of Va. Code Ann. § 18.2-255.2 (LexisNexis Supp. 2013).
It was noted that both convictions were aggravated felonies and
controlled substance offenses.
We lack jurisdiction, except as provided in 8 U.S.C.
§ 1252(a)(2)(D) (2006), to review the final order of removal of
an alien convicted of certain enumerated crimes, including an
aggravated felony or controlled substance violation. Under
§ 1252(a)(2)(C), we retain jurisdiction “to review factual
determinations that trigger the jurisdiction-stripping
provision, such as whether [Wilson] [i]s an alien and whether
[]he has been convicted of an aggravated felony” or controlled
substance violation. Ramtulla v. Ashcroft, 301 F.3d 202, 203
(4th Cir. 2002). Once we confirm these two factual
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determinations, then, under 8 U.S.C. § 1252(a)(2)(C), (D), we
can only consider “constitutional claims or questions of law.”
§ 1252(a)(2)(D); see Turkson v. Holder, 667 F.3d 523, 527 (4th
Cir. 2012).
Under 8 U.S.C. § 1227(a)(2)(A)(iii) (2006), an alien
is removable for having been convicted of an aggravated felony
at any time after admission. Wilson was first admitted to this
country in 1989. Under the Immigration and Nationality Act
(“INA”) § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) (2006), an
aggravated felony includes “illicit trafficking in a controlled
substance . . . including a drug trafficking crime (as defined
in section 924(c) of Title 18)[.]” Under 18 U.S.C. § 924(c)(2),
a drug trafficking crime means any felony punishable under the
Controlled Substances Act. Under INA § 237(a)(2)(B)(i), 8
U.S.C. § 1227(a)(2)(B)(i), an alien is also removable for having
been convicted of a controlled substance offense at any time
after admission. Wilson’s conviction for manufacturing or
distributing drugs on school property, for which he received a
five year sentence, is clearly an aggravated felony and a
controlled substance offense. Thus, we only have jurisdiction
to consider constitutional claims and questions of law.
Wilson has failed to raise a colorable constitutional
claim or a question of law. He contends that he is eligible for
relief from removal under INA § 212(h), 8 U.S.C. § 1182(h)(1)(B)
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(2006). Wilson did not raise this claim before the immigration
judge or the Board. Pursuant to 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[.]” We have noted that “an alien who has
failed to raise claims during an appeal to the [Board] has
waived his right to raise those claims before a federal court on
appeal of the [Board’s] decision.” Farrokhi v. INS, 900 F.2d
697, 700 (4th Cir. 1990); see also Gonahasa v. INS, 181 F.3d
538, 544 (4th Cir. 1999). Moreover, we have held that we lack
jurisdiction to consider an argument not made before the Board.
Asika v. Ashcroft, 362 F.3d 264, 267 n.3 (4th Cir. 2004).
Because Wilson did not apply for § 212(h) relief, we do not have
jurisdiction to review this claim.
Because Wilson does not raise a colorable
constitutional claim or a question of law, we deny the petition
for review. We grant the motion to proceed in forma pauperis.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
PETITION DENIED
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