Timoshchuk v. Sessions ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 8, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
MAKSIM VLADIMIROVIC
TIMOSHCHUK, a/k/a Mad Max,
a/k/a Mad One, a/k/a Maksim Vladimar
Timoshchuk,
Petitioner,
No. 17-9518
v. (Petition for Review)
JEFFERSON B. SESSIONS, III,
United States Attorney General,
Respondent.
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ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, HARTZ and O’BRIEN, Circuit Judges.
_________________________________
Maksim Timoshchuk, a native and citizen of Ukraine proceeding pro se, seeks
review of the decision of the Board of Immigration Appeals (BIA) upholding an
immigration judge’s (IJ) order denying his application for asylum, cancellation of
removal, and protection under the Convention Against Torture (CAT). We dismiss
the petition for review for lack of jurisdiction.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Timoshchuk was brought to the United States with his family in 2002 at the
age of nine as a refugee. In 2005, he adjusted status to lawful permanent resident.
In April 2015, he was convicted on guilty pleas in Colorado state court of forgery, in
violation of Colo. Rev. Stat. § 18-5-102(1)(e), and possession of methamphetamine
and heroin, in violation of Colo. Rev. Stat. § 18-18-403.5(1) & (2)(a). He was
sentenced to probation. In August 2015, his probation was revoked and he was
sentenced to three years in prison. He was released after serving eleven months and
was then taken into custody by Immigration and Customs Enforcement (ICE).
Timoshchuk conceded his removability and admitted his criminal convictions.
He filed for asylum, withholding of removal, and CAT protection. Applying
8 U.S.C. § 1158(b)(2)(A)(ii) & (B)(i), the IJ determined Timoshchuk was ineligible
for asylum because he had been convicted of an aggravated felony—the Colorado
forgery conviction. The IJ then addressed Timoshchuk’s request for cancellation of
removal and CAT protection. Although the IJ found his testimony credible, the IJ
determined the events Timoshchuk and his family had endured in Ukraine, allegedly
due to their Pentecostal Christian faith, did not rise to the level of persecution. The
IJ further determined Timoshchuk had not demonstrated a reasonable fear of future
persecution based on his Pentecostal religious beliefs or his political opinion. The IJ
then concluded Timoshchuk had not submitted sufficient evidence to establish he was
more likely than not to be tortured by the Ukrainian government, and therefore
rejected the CAT claim. Timoshchuk appealed to the BIA, arguing the IJ erred in
finding he had not established past persecution or a reasonable fear of future
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persecution based on his religious beliefs. The BIA reviewed the IJ’s determinations
on cancellation of removal and CAT protection, and dismissed the appeal.
Timoshchuk now seeks review in this court. He asserts his convictions for
possession of controlled substances under Colorado law did not preclude cancellation
of removal because he did not “possess” the drugs but, rather, consumed them due to
his addiction. Similarly, he contends his Colorado forgery conviction could not be
used to deny him relief.
“[W]e must first determine whether we have jurisdiction to consider
[Timoshchuk’s] claims.” Sosa-Valenzuela v. Gonzales, 483 F.3d 1140, 1143
(10th Cir. 2007). We lack jurisdiction to review a final removal order “against an
alien who is removable by reason of having committed a criminal offense covered in
section . . . 1227(a)(2)(A)(iii), [or] (B) . . . of this title.” 8 U.S.C. § 1252(a)(2)(C).
8 U.S.C. § 1227(a)(2)(A)(iii) refers to aggravated felonies and applies to
Timoshchuk’s forgery conviction. 8 U.S.C. § 1227(a)(2)(B), applies to
controlled-substances convictions and applies to Timoshchuk’s drug-possession
convictions. Although we lack jurisdiction to review the removal order, we do have
jurisdiction over constitutional claims or questions of law, 8 U.S.C. § 1252(a)(2)(D);
Alzainati v. Holder, 568 F.3d 844, 847 (10th Cir. 2009). Therefore, § 1252(a)(2)(C)
does not bar Timoshchuk’s claims of Colorado statutory construction.
Even so, we lack jurisdiction for another reason. Timoshchuk did not present
these claims to the BIA. We do not have jurisdiction over claims unless “the alien
has exhausted all administrative remedies available as of right.” Torres de la Cruz v.
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Maurer, 483 F.3d 1013, 1017 (10th Cir. 2007) (ellipsis and internal quotation marks
omitted); see also 8 U.S.C. § 1252(d)(1). Moreover, the alien “must present the
same specific legal theory to the BIA before he or she may advance it in court.”
Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237 (10th Cir. 2010). We thus lack
jurisdiction over Timoshchuk’s argument asserting his Colorado convictions do not
preclude the relief of cancellation of removal.
In his appellate reply brief, Timoshchuk presents additional constitutional
arguments, asserting claims based on equal protection, double jeopardy, cruel and
unusual punishment, and due process. Again, Timoshchuk did not raise these
arguments to the BIA so we lack jurisdiction to consider them. Torres, 483 F.3d
at 1017.
We also lack jurisdiction to address Timoshchuk’s appellate arguments
claiming the IJ and the BIA erred in holding he did not meet his burden of proof to
show entitlement to cancellation of removal or CAT protection, and his status as a
“refugee” precludes removal. These arguments do not qualify as constitutional or
legal claims triggering our jurisdiction under § 1252(a)(2)(D). Not all legal issues
qualify; only “issues regarding statutory construction” do so. Shepherd v. Holder,
678 F.3d 1171, 1179 (10th Cir. 2012) (internal quotation marks omitted).
Finally, Timoshchuk claims his detention by ICE “violated expedited
removal.” Aplt. Op. Br. at 8. The record does not include an expedited removal
order. He apparently argues he was wrongfully held in ICE custody after he was
ordered removed. But not only did the IJ inform him he could waive his appeal from
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the IJ’s decision and be removed forthwith, he filed a request for a stay of removal
pending appeal, which this court denied. These circumstances indicate he did not
want to be removed to Ukraine immediately. And even if Timoshchuk had a claim
based on ICE detention, he did not present it to the BIA, so we lack jurisdiction.
Torres, 483 F.3d at 1017-18.
The petition for review is DISMISSED for lack of jurisdiction. Timoshchuk’s
request to proceed on appeal in forma pauperis is DENIED AS MOOT. Since we
have addressed his petition for review, prepayment of fees is no longer an issue. The
relevant statute, 28 U.S.C. § 1915(a), does not permit litigants to avoid payment of
fees; only prepayment of fees is excused. Accordingly, Timoshchuk is required to
pay all fees ($500). Payment must be made to the Clerk of this Court. See
Fed. R. App. P. 15(e).
Entered for the Court
Terrence L. O’Brien
Circuit Judge
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