United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS December 14, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
)))))))))))))))))))))))))) Clerk
No. 05-61022
))))))))))))))))))))))))))
DERVIN VENION HEAVEN, also known as Sean Samuels,
also known as Ervin Henven, also known as Derving Evan
Petitioner
v.
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A40-088-884
Before SMITH, BENAVIDES, and PRADO, Circuit Judges.
PRADO, Circuit Judge:
Before us is a petition for review of a decision of the
Board of Immigration Appeals (“BIA”), which affirmed the
determination of an immigration judge that the petitioner was not
eligible to apply for cancellation of removal on the basis of the
stop-time rule. Because the BIA correctly decided that the stop-
time rule may be applied retroactively to the petitioner’s pre-
1996 convictions and because we lack jurisdiction over the
petitioner’s remaining claims, we DENY the petition in part and
DISMISS it in part.
I. FACTUAL AND PROCEDURAL BACKGROUND
Petitioner Dervin Venion Heaven (“Heaven”) was born in
Jamaica in 1966 and admitted to the United States as an immigrant
on March 14, 1986, but has never become a United States citizen.
On February 11, 1998, Heaven pleaded guilty, pursuant to a plea
agreement, to the criminal sale of marijuana in the fourth degree
in violation of New York Penal Law § 221.40. Following his
conviction, the Immigration and Naturalization Service (“INS”)1
took Heaven into custody and initiated proceedings to remove him
from the United States. The INS filed a Notice to Appear in
immigration court and served it on Heaven on December 4, 2000.
In the Notice, the INS charged that Heaven was subject to removal
under § 237(a)(2)(B)(i) of the Immigration and Nationality Act
(“INA”), 8 U.S.C. § 1227(a)(2)(B)(I) (2000), which authorizes the
deportation of any alien who has been convicted of a violation of
“any law or regulation of a State . . . relating to a controlled
substance . . . .”2
Over the next several years, the immigration judge twice
found Heaven subject to removal and ineligible for cancellation
1
The INS ceased to exist on March 1, 2003, when its
functions were transferred to the Department of Homeland Security
(“DHS”).
2
The INS also charged that Heaven was subject to removal
under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii),
which permits deportation of aliens who are convicted of an
aggravated felony. However, in a decision rendered on December
17, 2001, the BIA determined that Heaven’s February 11, 1998,
conviction was not a felony.
2
of removal, only to have the case reversed and remanded by the
BIA for reasons not relevant to the instant petition. On March
24, 2003, Heaven submitted an application for cancellation of
removal pursuant to INA § 240A, 8 U.S.C. § 1229b, which permits
the Attorney General to cancel the removal of a deportable alien
in certain circumstances. The DHS (formerly INS) then asserted
that between August 28, 1991, and September 13, 1992, Heaven had
been convicted of misdemeanor drug offenses in New York on five
occasions--four for criminal possession of marijuana and once for
criminal sale of marijuana. Heaven denied these allegations, and
the DHS withdrew its claim regarding one of the convictions.
On September 3, 2003, the immigration judge found that the
DHS proved that Heaven was convicted of possession of marijuana
on November 16, 1991, August 3, 1992, and September 13, 1992, and
the criminal sale of marijuana on March 8, 1992. The immigration
judge then determined that Heaven was ineligible for cancellation
of removal because, under the stop-time rule, Heaven’s 1991 and
1992 convictions prevented him from having the seven years of
continuous residence in the United States necessary for
cancellation of removal. See 8 U.S.C. § 1229b(a)(2) (requiring
seven years of continuous residence in the United States to be
eligible for cancellation of removal); id. § 1229b(d)(1) (stating
that period of continuous residence ends when the alien commits
certain deportable offenses).
Heaven appealed to the BIA, contending that application of
3
the stop-time rule was impermissibly retroactive, as the rule was
not enacted until 1996, after Heaven had received his
convictions. On January 21, 2004, the BIA dismissed Heaven’s
appeal, holding that the stop-time rule should be applied
retroactively to Heaven’s pre-1996 convictions. Heaven then
filed a petition for habeas corpus in the United States District
Court for the Eastern District of New York on April 7, 2004,
seeking review of the BIA’s order. On October 28, 2005, the
district court transferred the habeas petition to this court
pursuant to the REAL ID Act of 2005 (“REAL ID Act”), Pub. L. No.
109-13, 119 Stat. 231, 310-11, § 106(c) (2005).3 See also 8
U.S.C. § 1252(a)(5) (making a petition for review in the court of
appeals the sole and exclusive means for review of an order of
removal). The parties have briefed the issues, and we now turn
to the merits of our decision.
II. JURISDICTION AND STANDARD OF REVIEW
Section 106(c) of the REAL ID Act authorizes us to treat
Heaven’s petition for habeas corpus as a petition for review, and
this court has jurisdiction to review constitutional claims and
questions of law raised in a petition for review. See 8 U.S.C.
§ 1252(a)(2)(D). We give deference to the BIA’s interpretation
of the INA under the principles of Chevron U.S.A., Inc. v.
3
Heaven’s removal proceedings took place in Louisiana;
therefore, venue is appropriate in this court pursuant to 8
U.S.C. § 1252(b)(2).
4
Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
See also James v. Gonzales, 464 F.3d 505, 508 (5th Cir. 2006)
(“We accord substantial deference to the BIA’s interpretation of
the INA itself and definitions and phrases within it . . . .”
(internal quotation marks and citation omitted)). However, we
review de novo claims of constitutional error, such as due
process violations, in immigration proceedings. Ali v. Gonzales,
440 F.3d 678, 681 (5th Cir. 2006) (per curiam); Anwar v. INS, 116
F.3d 140, 144 (5th Cir. 1997).
III. DISCUSSION
Heaven raises three issues on appeal: (1) whether the stop-
time rule should have been applied retroactively to his 1991 and
1992 convictions; (2) whether he should be permitted to
simultaneously apply for § 212(c) relief; and (3) whether res
judicata and collateral estoppel bar consideration of his 1991
and 1992 convictions. The Government contends that Congress
intended the stop-time rule to be applied retroactively and that
this court lacks subject matter jurisdiction over Heaven’s other
claims because he failed to exhaust his administrative remedies.
We first consider the application of the stop-time rule to
Heaven’s case.
A. Retroactive Application of the Stop-Time Rule
On appeal, Heaven does not contend that he is not subject to
removal on the basis of his February 11, 1998, conviction.
5
Instead, Heaven argues that the immigration judge and the BIA
erred in determining that he was ineligible for cancellation of
removal on the basis of the stop-time rule.
The cancellation of removal procedure was created in 1996
when Congress enacted the Illegal Immigration Reform and
Immigrant Responsibility Act (“IIRIRA”), Pub. L. No. 104-208, 110
Stat. 3009-546 (1996). As the procedure currently stands,
The Attorney General may cancel removal in the case
of an alien who is inadmissible or deportable from the
United States if the alien--
(1) has been an alien lawfully admitted for
permanent residence for not less than 5 years,
(2) has resided in the United States continuously
for 7 years after having been admitted in any
status, and
(3) has not been convicted of any aggravated felony.
INA § 240A(a), 8 U.S.C. § 1229b(a). The IIRIRA further added a
limitation on the continuous residence requirement in the second
prong of the cancellation of removal criteria as follows:
For purposes of this section, any period of
continuous residence or continuous physical presence in
the United States shall be deemed to end . . . (B) when
the alien has committed an offense referred to in section
1182(a)(2) of this title that renders the alien
inadmissible to the United States under section
1182(a)(2) of this title or removable from the United
States under section 1227(a)(2) or 1227(a)(4) of this
title, whichever is earliest.
INA § 240A(a), 8 U.S.C. § 1229b(d)(1). This is known as the
stop-time rule.
In this case, the BIA found that the stop-time rule applied
6
to Heaven’s 1991 and 1992 convictions. Because Heaven entered
the United States in 1986 and committed drug offenses in 1991 and
1992 that rendered him deportable under 8 U.S.C. § 1227(a)(2),
his period of continuous residence in the United States ended
after only five years pursuant to the stop-time rule. Therefore,
the BIA reasoned that Heaven was ineligible for cancellation of
removal because he did not have seven years of continuous
residence.
Heaven, however, argues that his convictions for the drug
offenses in 1991 and 1992 did not render him ineligible for
cancellation of removal at that time because the stop-time rule
was not enacted until 1996.4 Therefore, he contends that the
BIA’s application of the stop-time rule to his convictions is
impermissibly retroactive and violates his due process rights
under the United States Constitution.
1. Retroactive Application of Statutes
“[T]he presumption against retroactive legislation is deeply
rooted in our jurisprudence . . . .” Landgraf v. USI Film
Prods., 511 U.S. 244, 265 (1994). Indeed, “[e]lementary
considerations of fairness dictate that individuals should have
an opportunity to know what the law is and to conform their
4
Before the IIRIRA was enacted in 1996, the cancellation
of removal procedure was known as “suspension of deportation.”
INA § 244, 8 U.S.C. § 1254 (now repealed). The suspension of
deportation procedure required seven years of continuous
residence, but did not contain a stop-time rule. Id.
7
conduct accordingly . . . .” Id. However, retroactive
legislation is not, per se, unenforceable. See INS v. St. Cyr,
533 U.S. 289, 316 (2001) (“[I]t is beyond dispute that, within
constitutional limits, Congress has the power to enact laws with
retrospective effect.”).
The Supreme Court has set out a two-part test to determine
when it is permissible to apply a statute retroactively.
Margolies v. Deason, 464 F.3d 547, 551 (5th Cir. 2006) (citing
Landgraf). The first step is to “ascertain whether Congress has
directed with the requisite clarity that the law be applied
retrospectively.” St. Cyr, 533 U.S. at 316 (citing Martin v.
Hadix, 527 U.S. 343, 352 (1999)); see also Landgraf, 511 U.S. at
280 (stating “the court’s first task is to determine whether
Congress has expressly prescribed the statute’s proper reach”).
Such a requirement ensures that Congress itself has determined
that the benefits of retroactivity outweigh the potential for
disruption or unfairness. Landgraf, 511 U.S. at 268.
Congressional intent must be an “unambiguous directive”;
therefore, the existence of plausible alternative explanations
for statutory language means that the first part of the test
cannot be satisfied. See Margolies, 464 F.3d at 552 (citing
Lindh v. Murphy, 521 U.S. 320, 329 n.4 (1997)).
If the statute contains no express command from Congress
that it be applied retroactively, we move to the second step in
the analysis and determine whether application of the new statute
8
would have an impermissible retroactive effect. Landgraf, 511
U.S. at 280. This entails a determination of whether retroactive
application of the statute “would impair rights a party possessed
when he acted, increase a party’s liability for past conduct, or
impose new duties with respect to transactions already
completed.” Id. Stated differently, we must ask whether the
statute attaches new legal consequences to events completed
before its enactment. Id. at 269-70. If the statute does, we
apply the traditional presumption against retroactivity. Id. at
280.
The Supreme Court discussed the retroactive application of a
provision of the IIRIRA in INS v. St. Cyr, 533 U.S. 289 (2001), a
case on which Heaven relies. In St. Cyr, the Supreme Court
considered whether the IIRIRA’s repeal of § 212(c) of the INA
should be applied retroactively. Under former § 212(c), the
Attorney General had the discretionary authority to grant relief
to an alien in deportation proceedings, as long as the alien had
not been convicted of certain crimes. See id. at 295-97. The
IIRIRA repealed § 212(c), replacing it with the cancellation of
removal procedure described above. Id. at 297. The cancellation
of removal procedure and related provisions expanded the types of
crimes that prohibited the Attorney General from granting
discretionary relief to aliens subject to deportation. See id.;
see also 8 U.S.C. § 1229b(a)(3). Therefore, aliens who had
pleaded guilty to certain crimes before 1996 with the expectation
9
that they would remain eligible for § 212(c) relief were no
longer permitted to seek relief by way of cancellation of removal
because of their convictions.
The Supreme Court held that the repeal of § 212(c) was not
retroactive. St. Cyr, 533 U.S. at 326. In so holding, the
Supreme Court first determined that Congress had not clearly
indicated that the repeal of § 212(c) was to be retroactive. See
id. at 316-20. In its analysis of Congress’s intent, the Supreme
Court contrasted Congress’s silence on the retroactivity of the
repeal with other portions of the IIRIRA in which Congress was
clear that retroactive application was intended. Id. at 318-20.
For example, the IIRIRA’s amended definition of “aggravated
felony” clearly stated it was to apply to “conviction[s] . . .
entered before, on, or after” the statute’s enactment date. Id.
at 319-20 (citing IIRIRA § 321(b)); see also id. at 319 n.43
(listing numerous examples of statements of congressional intent
that portions of the IIRIRA be applied retroactively). Finding
no clear congressional intent that the repeal of § 212(c) should
be retroactively applied, the Supreme Court then determined in
the second step of the retroactivity analysis that a retroactive
application would change the legal consequences of the aliens’
guilty pleas to their detriment. See id. at 321-325. Therefore,
the Court held that the repeal of § 212(c) could not be
retroactively applied. Id. at 326.
10
Although St. Cyr is not binding precedent with respect to
the stop-time rule, as St. Cyr dealt with a different provision
of the IIRIRA, its analysis does counsel us to examine closely
the language of the IIRIRA in determining Congress’s intent.
2. Determining Congress’s Intent
Section 309(a) of the IIRIRA provides that, in general, the
provisions of the IIRIRA “shall take effect on the first day of
the first month beginning more than 180 days after the date of
the enactment” of the IIRIRA. Therefore, although the IIRIRA was
enacted on September 30, 1996, its provisions did not take effect
until April 1, 1997. Section 309(c)(1) of the IIRIRA states
that, subject to a few exceptions, the amendments made by the
IIRIRA do not apply to aliens whose deportation proceedings were
pending as of April 1, 1997.
An exception to this general rule is found in § 309(c)(5) of
the IIRIRA, which speaks to the retroactive application of the
stop-time rule. Specifically, § 309(c)(5) of the IIRIRA states:
TRANSITIONAL RULE WITH REGARD TO SUSPENSION OF
DEPORTATION.--Paragraphs (1) and (2) of section 240A(d)
of the Immigration and Nationality Act (relating to
continuous residence or physical presence) shall apply to
notices to appear issued before, on, or after the date of
the enactment of this Act.
Paragraph 1 of § 240A(d) is the stop-time rule. In 1997,
Congress amended § 309(c)(5) when it passed the Nicaraguan
Adjustment and Central American Relief Act (“NACARA”), Pub. L.
No. 105-100, 111 Stat. 2160, 2196 (1997). Section 203(a) of the
11
NACARA substituted “orders to show cause” for “notices to appear”
in § 309(c)(5) of the IIRIRA.5 This amendment came in response
to confusion caused by the use of the phrase “notices to appear”
in § 309(c)(5), because prior to the IIRIRA’s enactment in 1996,
the Government did not use notices to appear, but instead used
orders to show cause. Rojas-Reyes v. INS, 235 F.3d 115, 120 (2d
Cir. 2000). Aliens in deportation proceedings initiated before
the IIRIRA was enacted began to argue that they were not subject
to § 309(c)(5) because their proceedings were initiated with
orders to show cause. Peralta v. Gonzales, 441 F.3d 23, 27 (1st
Cir. 2006). The amendment by the NACARA put an end to those
arguments. See id.
This court has previously determined that the transitional
rule found in § 309(c)(5) requires the retroactive application of
§ 240A(d) to cases that were pending at the time the IIRIRA took
effect. Gonzalez-Torres v. INS, 213 F.3d 899, 902-03 (5th Cir.
2000). Many other circuit courts have reached the same
conclusion. See Peralta, 441 F.3d at 30-32; Suassuna v. INS, 342
F.3d 578, 582-83 (6th Cir. 2003); Ram v. INS, 243 F.3d 510, 516
(9th Cir. 2001); Pinho v. INS, 249 F.3d 183, 188-90 (3d Cir.
2001); Angel-Ramos v. Reno, 227 F.3d 942, 947 (7th Cir. 2000);
Afolayan v. INS, 219 F.3d 784, 788 (8th Cir. 2000); Rivera-
Jiménez v. INS, 214 F.3d 1213, 1217 (10th Cir. 2000) (per
5
The NACARA added some further provisions to § 309(c)(5),
none of which are relevant to this case.
12
curiam); Tefel v. Reno, 180 F.3d 1286, 1302 (11th Cir. 1999),
cert. denied, 530 U.S. 1228 (2000). Heaven’s removal
proceedings, however, did not commence until after the IIRIRA was
enacted and became effective. Therefore, this case presents a
slightly different question from the one addressed by the cases
listed above--specifically, whether the retroactive requirement
in the transitional rule also applies to immigration proceedings
commenced after the effective date of the IIRIRA, as those cases
do not fall under the transitional rule.
In its order on Heaven’s appeal, the BIA referred to its
decision in In re Perez, 22 I & N Dec. 689 (BIA 1999). In Perez,
the BIA held that the stop-time rule does apply retroactively in
proceedings that were initiated by way of a notice to appear
after the effective date of the IIRIRA. Id. at 691. Pursuant to
the principles of Chevron, we subject the BIA’s decision to a
deferential review. See Chevron, 467 U.S. at 842-43. We first
ask whether Congress has spoken directly to the precise question
at issue. Id. at 842; Malagon de Fuentes v. Gonzales, 462 F.3d
498, 502 (5th Cir. 2006). If Congress’s intent is clear, the BIA
and this court must give effect to that intent. Chevron, 467
U.S. at 842-43; Malagon, 462 F.3d at 502. If, however, the
statute is silent or ambiguous with respect to the specific
issue, we ask only whether “the agency’s answer is based on a
permissible construction of the statute.” Chevron, 467 U.S. at
843; Malagon, 462 F.3d at 502.
13
Here, Congress stated that the stop-time rule should be
retroactively applied to cases pending at the time the IIRIRA
became effective. As held by the Ninth Circuit in Garcia-Ramirez
v. Gonzales, it would be “incongruous,” then, to not apply the
same rule to aliens whose proceedings were initiated after the
effective date of the IIRIRA. 423 F.3d 935, 941 (9th Cir. 2005)
(per curiam). The Ninth Circuit is the only circuit so far to
consider whether the transitional rule applies to removal
proceedings that were begun after the effective date of the
IIRIRA.6 In Garcia-Ramirez, the Ninth Circuit dealt with
paragraph (2) of INA § 240A(d), which states that an alien’s
physical presence in the United States is deemed to end if the
alien “has departed from the United States for any period in
excess of 90 days or for any periods in the aggregate exceeding
180 days” (the “90/180 rule”). 423 F.3d at 937. There, the
court applied the 90/180 rule retroactively to deny cancellation
of removal to an alien who left the United States for five months
in 1989. Id.
Because Congress has spoken directly to the question at
issue in this case, we need not proceed further with the Chevron
deference analysis. Therefore, we now join the Ninth Circuit in
holding that § 309(c)(5) requires the retroactive application of
6
The Third Circuit has also applied the stop-time rule
retroactively, but did so without any discussion. See Okeke v.
Gonzales, 407 F.3d 585, 588 (3d Cir. 2005).
14
§ 240A(d) in removal proceedings commenced after the effective
date of the IIRIRA. Because Congress has clearly conveyed its
intent that the stop-time rule be retroactively applied, we do
not reach the second step in the retroactivity analysis.
3. Heaven’s Arguments
Heaven relies on several district court cases in support of
his position that the stop-time rule should not be retroactively
applied. One such case is Henry v. Ashcroft, 175 F. Supp. 2d 688
(S.D.N.Y. 2001), which held that the stop-time rule may not be
applied retroactively to removal proceedings commenced after the
enactment of the IIRIRA. Id. at 696. The district court in
Henry based its decision on the proposition that § 309(c)(5) only
applies to proceedings that were currently pending at the time
the IIRIRA was enacted. See id. at 694. Therefore, according to
the district court, Congress was silent or unclear as to whether
the stop-time rule should be applied to proceedings that began
after the IIRIRA was enacted. Id. This rationale, however, was
rejected by the Ninth Circuit in Garcia-Ramirez, which saw no
reason why § 240A(d) should be applied retroactively to cases
pending at the time the IIRIRA became effective but not to those
brought after the effective date. 423 F.3d at 941. We agree with
the reasoning of the Ninth Circuit.
Heaven also cites an unpublished decision out of the Western
District of Michigan that similarly rejected the retroactive
15
application of the stop-time rule. Generi v. Ashcroft, No. 4:03-
CV-15, 2004 WL 771138 (W.D. Mich. Apr. 13, 2004). In Generi, the
district court reasoned that the “orders to show cause” language
in § 309(c)(5) meant that it only applied to the portion of the
stop-time rule that stated that an alien’s continuous residence
ends when he is served with a notice to appear.7 Id. at **4-6
(noting that Congress did not state that the conviction prong of
§ 240A(d)(1) was to be applied retroactively).
The First Circuit dismissed such an argument in Peralta,
which is a case brought under the transitional rules of the
IIRIRA but is nonetheless correct in its analysis of this issue.
As described by the First Circuit, paragraphs (1) and (2) of
§ 240A(d), to which § 309(c)(5) applies, create three different
triggering events that cut off the accrual of an alien’s
continuous presence and residence in the United States: (1)
service of a notice to appear; (2) commission of certain
deportable crimes; and (3) violation of the 90/180 rule.
Peralta, 441 F.3d at 31. Limiting application of § 309(c)(5) to
only the first triggering event (service of a notice to appear)
renders the reference to paragraph (2) in § 305(c)(5) (the 90/180
rule) meaningless. Id. The First Circuit’s reasoning is sound.
We are to construe statutes to give effect to all words and
7
The portion of the stop-time rule referred to is
paragraph (1) of § 240A(d), which stops the continuous residence
of an alien “when the alien is served a notice to appear under
section 1229(a) of this title . . . .” 8 U.S.C. § 1229b(d)(1).
16
phrases, if possible. See Reiter v. Sonotone Corp., 442 U.S.
330, 339 (1979) (“In construing a statute [courts] are obliged to
give effect, if possible, to every word Congress used.”); see
also Kaltenbach v. Richards, 464 F.3d 524, 528 (5th Cir. 2006)
(stating that a statute should be construed so that no clause,
sentence, or word is superfluous, void, or insignificant).
Therefore, the Generi decision does not persuade us.
In sum, after review of § 309(c)(5) and other cases on
point, we conclude that Congress has expressed its intent that
the stop-time rule should be retroactively applied to convictions
that arose before the IIRIRA was enacted and that the BIA’s
decision was not erroneous in that regard.
4. Due Process Claim
In addition to claiming that Congress did not intend the
stop-time rule to be retroactively applied, Heaven also asserts
that the retroactive application violates his due process rights.
Even if Congress has been clear that a statute should be applied
retroactively, retroactive application of the statute may still
be impermissible if it violates a constitutional provision. See
St. Cyr, 533 U.S. at 316 (noting that Congress may enact
retrospective laws “within constitutional limits”); see also
Landgraf, 511 U.S. at 267 (noting that “[a]bsent a violation of
[a constitutional provision], the potential unfairness of
retroactive civil legislation is not a sufficient reason for a
17
court to fail to give a statute its intended scope”).
This court has previously determined that the retroactive
application of the stop-time rule to proceedings that were
currently pending when the IIRIRA was enacted does not violate
the due process clause. Gonzalez-Torres, 213 F.3d at 902-03; see
also Rojas-Reyes, 235 F.3d at 121-24 (holding that retroactive
application of the stop-time rule to proceedings pending when the
IIRIRA was enacted does not violate substantive or procedural due
process rights). There is no reason to treat the due process
analysis any differently simply because Heaven’s removal
proceedings did not begin until after the IIRIRA was enacted.
Consequently, the BIA’s decision that the stop-time rule
applies retroactively to Heaven’s 1991 and 1992 convictions does
not violate Heaven’s due process rights. Therefore, the BIA was
correct in determining that Heaven was ineligible for
cancellation of removal because he lacked the requisite seven
years of continuous residence.
B. Heaven’s Other Arguments on Appeal
Heaven also argues that (1) the BIA erred by not considering
whether he could apply for § 212(c) relief at the same time he
applied for cancellation of removal; and (2) the principles of
res judicata and collateral estoppel should have prevented the
Government from raising his 1991 and 1992 convictions over two
years after the removal proceedings had been initiated. The
Government contends that this court does not have subject matter
18
jurisdiction over these claims because Heaven did not exhaust his
administrative remedies with respect to these arguments.
Pursuant to 8 U.S.C. § 1252(d), “[a] court may review a
final order of removal only if--(1) the alien has exhausted all
administrative remedies available to the alien as of
right . . . .” As interpreted by this court, failure to exhaust
an issue creates a jurisdictional bar on appeal. Roy v.
Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004) (per curiam). “An
alien fails to exhaust his administrative remedies with respect
to an issue when the issue is not raised in the first instance
before the BIA--either on direct appeal or in a motion to
reopen.” Wang v. Ashcroft, 260 F.3d 448, 452-53 (5th Cir. 2001).
Here, Heaven asserts in both his habeas corpus petition and
petition for review before this court that the BIA erred when it
did not consider whether he could simultaneously apply for
§ 212(c) relief as well as for cancellation of removal. As noted
above, § 212(c) permits the Attorney General to waive deportation
for an alien, as long as the alien has not been convicted of
certain crimes. See St. Cyr, 533 U.S. at 295-97. Heaven argues
before this court that the BIA’s decision in In re Gabryelsky, 20
I & N Dec. 750 (BIA 1993), permits him to simultaneously apply
for § 212(c) relief as well as for cancellation of removal. The
Government is correct, however, that Heaven did not raise this
issue before the BIA. Heaven’s appeal to the BIA makes no
mention of his eligibility for § 212(c) relief or the Gabryelsky
19
decision. Consequently, Heaven did not exhaust his
administrative remedies with respect to this claim, and we lack
jurisdiction to entertain it on appeal.8
Similarly, Heaven did not raise his argument regarding res
judicata and collateral estoppel before the BIA. Therefore,
pursuant to 8 U.S.C. § 1252(d)(1), we lack jurisdiction over this
claim as well.
IV. CONCLUSION
Because the BIA did not err in applying the stop-time rule
retroactively to Heaven’s 1991 and 1992 convictions and because
we lack jurisdiction over Heaven’s other claims, we DENY Heaven’s
petition for review in part and DISMISS it in part.
DENIED in part and DISMISSED in part.
8
We make no comment as to whether Heaven would be eligible
for § 212(c) relief.
20