Aarti Jayantakumar Sutariya v. U.S. Atty. Gen. ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-15598 NOV 12, 2008
No. 08-11097 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A94-823-028
AARTI JAYANTAKUMAR SUTARIYA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petitions for Review of a Decision of the
Board of Immigration Appeals
_________________________
(November 12, 2008)
Before BIRCH, DUBINA and MARCUS, Circuit Judges.
PER CURIAM:
Aarti Jayantakumar Sutariya, a female native and citizen of India, seeks
review of the Department of Homeland Security’s (“DHS”) final order of removal.
Sutariya argues that she was not removable because her state convictions for
making terroristic threats did not qualify as aggravated felony crimes of violence.
She also raises the following legal and constitutional claims: (1) the expedited
removal procedures were unfair because she was not properly served with the
expedited removal order; (2) she deserved a hearing during her expedited removal
proceedings and the opportunity to appeal any decision to the BIA; (3) the DHS
improperly failed to consider her application for asylum; and (4) she was denied
equal protection by being placed in expedited removal proceedings, rather that
general removal proceedings. After careful review, we dismiss the petitions in
part, and deny them in part.1
We review our subject matter jurisdiction de novo. Gonzalez-Oropeza v.
U.S. Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003).
We lack jurisdiction to review a final order of removal against an alien who
was removable, under 8 U.S.C. § 1227(a)(2)(A)(iii), based on her commission of
an aggravated felony. 8 U.S.C. § 1252(a)(2)(C). “Nonetheless, because judicial
review is limited by statutory conditions, we retain jurisdiction to determine
whether those conditions exist.” Camacho-Salinas v. U.S. Att’y Gen., 460 F.3d
1Sutariya has abandoned the claim in her second petition for review -- challenging the Board
of Immigration Appeals’s (“BIA”) dismissal of her appeal from the immigration judge’s (“IJ”)
negative reasonable fear finding -- because she failed to raise this claim in her appellate brief. See
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005).
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1343, 1346 (11th Cir. 2006). Accordingly, we may determine if the petitioner was
(1) an alien, (2) who was removable, (3) for having committed an aggravated
felony. Id. Pursuant to the REAL ID Act of 2005, we also have jurisdiction to
consider “constitutional claims or questions of law” raised in a petition for review
of a final order of removal. See Ali v. U.S. Att’y Gen., 443 F.3d 804, 809 (11th
Cir. 2006) (quotation marks omitted); 8 U.S.C. § 1252(a)(2)(C), (D).
However, we may review a final order of removal only if “the alien has
exhausted all administrative remedies available to the alien as of right.” 8 U.S.C.
§ 1252(d)(1). Accordingly, “we lack jurisdiction to consider a claim raised in a
petition for review unless the petitioner has exhausted [her] administrative
remedies with respect thereto.” Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d
1247, 1251 (11th Cir. 2006). An alien who is notified of the DHS’s intent to issue
a final order of removal due to her commission of an aggravated felony and placed
in expedited removal proceedings has ten days to respond to the notice and
challenge the determination that she is an aggravated felon prior to the issuance of
a final order of removal. See 8 U.S.C. § 1228(b)(4); 8 C.F.R. § 238.1(c).
As applied here, we lack jurisdiction over Sutariya’s argument that her state
convictions for making terroristic threats were not aggravated felonies. As the
record shows, she did not properly challenge that determination during her
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expedited removal proceedings; rather, the only point at which Sutariya appears to
have challenged it was in the context of her motion to an IJ for bond
redetermination, which did not directly challenge her removability and was filed
over ten days after she received notice of the DHS’s intent to issue a final order of
removal.2 Indeed, Sutariya admits in her brief that she did not properly challenge
the determination that she was an aggravated felon, saying that she “would have
challenged” it if she had been granted a hearing before an IJ. Thus, we lack
jurisdiction over this claim. See Lubowa v. U.S. Att’y Gen., 2008 WL 4148523, at
*2 (11th Cir. Sept. 10, 2008) (unpublished) (holding that we lack jurisdiction,
based on a failure to exhaust, where an alien in expedited removal proceedings
failed to challenge the DHS’s determination that he committed an aggravated
felony after receiving notice of the DHS’s intent to issue a final removal order on
that basis); see also Fonseca-Sanchez v. Gonzales, 484 F.3d 439, 443-44 (7th Cir.
2007).
We likewise lack jurisdiction to review Sutariya’s equal protection and due
process claims regarding her removal proceedings. As the record shows, Sutariya
2
DHS issued a Notice of Intent to Issue a Final Administrative Removal Order as to Sutariya
on October 1, 2007, and its certificate of service indicated that a deportation officer attempted
service on Sutariya on October 30, 2007, but she refused to acknowledge receipt of the document
at that time. Nonetheless, the record demonstrates that Sutariya received the Notice of Intent before
October 30, because she filed a petition for review of the Notice with this Court on or about October
19, 2007.
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did not raise any constitutional challenges to the final order of removal; rather, she
appears to only have raised some of them in her appeal of the IJ’s negative
reasonable fear finding, which not only was in a separate context and dealt with
different issues, but was filed more than ten days after she received notice of the
DHS’s intent to issue a final order of removal. Therefore, we also lack jurisdiction
over her constitutional challenges to the final order of removal. See Yang v. U.S.
Att’y Gen., 494 F.3d 1311, 1316 (11th Cir. 2007) (holding that we lack
jurisdiction over unexhausted equal protection claims); Amaya-Artunduaga, 463
F.3d at 1251 (holding that we lack jurisdiction over unexhausted due process
claims for which remedies could have been provided, which include procedural
due process claims).
DISMISSED IN PART, DENIED IN PART.
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