IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 17, 2009
No. 07-60445
Summary Calendar Charles R. Fulbruge III
Clerk
CHARLES EGBERT CLARKE, also known as Shawn Phillips, also known as
Charlie Charkes, also known as Charles Clark, also known as Sean C Phillips,
also known as Karl J Clarke, also known as Junior Davis, also known as Junior
Smith, also known as Charle Willmoe, also known as Rambo Gibbs, also known
as Junior Kojak, also known as Shan Phillips
Petitioner
v.
ERIC H HOLDER, JR, U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A39 059 578
Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Charles Egbert Clarke, a native and citizen of Guyana, petitions this court
for review of the decision of the Board of Immigration Appeals (BIA) dismissing
his appeal and affirming the immigration judge’s (IJ) order finding him ineligible
for cancellation of removal because he had committed an aggravated felony;
*
Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5 TH C IR. R. 47.5.4.
No. 07-60445
removable pursuant to 8 U.S.C. § 1227(a)(2)(B)(i) because he had been convicted
of a controlled substance violation; and removable pursuant to § 1227(a)(2)(A)(iii)
because he had been convicted of an aggravated felony. Because Clarke did not
present any argument before the BIA challenging the IJ’s determination that he
was removable pursuant to § 1227(a)(2)(B)(i), no such argument may be
considered now. See Witter v. INS, 113 F.3d 549, 554 (5th Cir. 1997). Section
§ 1227(a)(2)(B)(i) provided an alternate basis for his removability, and, therefore,
any challenges to his removability now are unavailing.
Clarke contends that the BIA erred in finding that he had committed an
aggravated felony such that he was statutorily ineligible for cancellation of
removal. Clarke was convicted in New York in 2006 of criminal possession of
crack cocaine in the seventh degree after he had been convicted in New York in
1995 of criminal possession of cocaine in the seventh degree. The BIA did not
err in concluding that Clarke had committed an aggravated felony for
immigration law purposes. See Carachuri-Rosendo v. Holder, 570 F.3d 263,
266-68 (5th Cir. 2009), petition for cert. filed (July 15, 2009) (No. 09-60);
Garcia-Maldonado v. Gonzales, 491 F.3d 284, 290-91 (5th Cir. 2007). Clarke
also claims that several due process violations occurred with respect to his
removal proceedings. Because those claims were not exhausted before the BIA,
this court lacks jurisdiction to consider them. See Roy v. Ashcroft, 389 F.3d 132,
137 (5th Cir. 2004).
Clarke has also filed a petition for review (PFR) of the BIA’s denial of his
motion for reconsideration. The arguments involved in that PFR are identical
to arguments raised with respect to Clarke’s PFR from the BIA’s dismissal of his
appeal. Accordingly, Clarke’s PFR from the denial of his motion for
reconsideration lacks merit for same reasons above. The Government moves to
dismiss Clarke’s PFR from the denial of his motion for reconsideration.
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No. 07-60445
For the reasons stated above, Clarke’s PFR from the dismissal of his
appeal is DENIED, his PFR from the denial of his motion for reconsideration is
DENIED, and the Government’s motion to dismiss is DENIED as unnecessary.
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