NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-4738
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ANDREW ROWAN GORDON,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A026-629-636)
Immigration Judge: Honorable Andrew Arthur
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 14, 2010
Before: SMITH, FISHER and GARTH, Circuit Judges
(Opinion filed: July 19, 2010 )
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OPINION
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PER CURIAM
Andrew Gordon, proceeding pro se, petitions for review of a Board of
Immigration Appeals (“BIA”) decision upholding an Immigration Judge’s (“IJ”) order of
removal. For the reasons that follow, we will deny the petition for review.
I
Gordon is a citizen of the United Kingdom. He was born in January 1969, arrived
in the United States in July 1984, and obtained lawful permanent resident status in
November 1987. In 1989, Gordon was convicted in Connecticut state court for
possession with intent to sell cocaine. He was sentenced to a suspended term of two
years’ imprisonment. In 2007, Gordon pleaded guilty in the United States District Court
for the District of Connecticut to possession with intent to distribute more than 50 grams
of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). He received a
sentence of 70 months’ imprisonment.
Based on his federal drug conviction, the Department of Homeland Security
initiated removal proceedings against Gordon. Gordon conceded removability, but
argued before the IJ that he may have obtained United States citizenship when his mother
naturalized in 1994. The IJ concluded that Gordon was not a citizen and that he was
ineligible for any form of discretionary relief.
Gordon appealed, pro se, arguing that the IJ failed to consider the hardship on his
American-born children and United States citizen wife. He also made reference to INA
§ 204, 8 U.S.C. § 1154, which includes provisions for spousal visa petitions. The BIA
dismissed the appeal, agreeing with the IJ that Gordon did not have derivative citizenship
and concluding that he was ineligible for other relief. Gordon then filed a petition for
review.
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II
We have jurisdiction pursuant to 8 U.S.C. § 1252(a). Because the BIA issued its
own opinion, we review its decision rather than that of the IJ. See Li v. Att’y Gen., 400
F.3d 157, 162 (3d Cir. 2005). However, we also look to the decision of the IJ to the
extent that the BIA deferred to or adopted the IJ’s reasoning. See Chavarria v. Gonzalez,
446 F.3d 508, 515 (3d Cir. 2006). We review agency factual determinations for
substantial evidence, and will uphold a factual determination “unless the evidence not
only supports a contrary conclusion, but compels it.” Zhang v. Gonzales, 405 F.3d 150,
155 (3d Cir. 2005) (internal citations omitted). Because Gordon is proceeding pro se, we
construe his pleadings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
Gordon does not appear to challenge the Agency’s determination that his 2007
drug conviction, which constituted an aggravated felony, see INA § 101(a)(43)(B), 8
U.S.C. § 1101(a)(43)(B), rendered him ineligible for discretionary relief. See INA
§ 240A(a)(3), 8 U.S.C. § 1229b(a)(3) (cancellation of removal); INA § 212(h), 8 U.S.C.
§ 1182(h) (waiver of inadmissibility); 8 C.F.R. § 212.3(f) (relief under former INA
§ 212(c)). Nor does he dispute that he did not obtain derivative citizenship through his
mother. Rather, Gordon argues that: (1) he was entitled to derivative citizenship through
his wife; (2) the Board erred in holding “that it lacked jurisdiction to entertain [his]
constitutional claim”; (3) the statute governing removal of aliens is unconstitutional;
(4) removal constitutes “double punishment”; (5) he was denied due process (but does not
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elaborate); and (6) removal constitutes cruel and unusual punishment under the Eighth
Amendment.
Because arguments 3 through 6 were not raised before the BIA, they are
unexhausted and we lack authority to consider them. See Lin v. Att’y Gen., 543 F.3d
114, 119-21 & n.6 (3d Cir. 2008). With regard to his wife’s citizenship, the Board
reasoned that Gordon provided no evidence that his wife had filed a visa petition on his
behalf and, even if she had, Gordon could not obtain the benefit of such a petition
because he is inadmissible and ineligible for any waiver. We agree.
As to Gordon’s argument that the Board erred in holding that it lacked jurisdiction
to consider his “constitutional claim,” it is unclear what constitutional claim Gordon
refers to: the only issue the BIA held that it lacked authority to act on was what the Board
construed to be a request for humanitarian relief. The BIA can grant only those forms of
relief from removal that are expressly authorized by Congress and delegated by the
Attorney General. See Beharry v. Ashcroft, 329 F.3d 51, 59 (2d Cir. 2003) (citing Matter
of Medina, 19 I&N Dec. 734, 741-42, 746 (BIA 1988)). Here, the BIA reasoned that it
lacked the power to grant equitable remedies or general humanitarian relief. Gordon does
not identify – and we are not aware of – any remedy within the BIA’s power for which he
would have been eligible.
Accordingly, we will deny the petition for review.
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