Lourghi v. Attorney General of the United States , 168 F. App'x 501 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
2-14-2006
Lourghi v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-2873
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"Lourghi v. Atty Gen USA" (2006). 2006 Decisions. Paper 1583.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-2873
________________
ABDESSALEM LOURGHI,
Petitioner
vs
ATTORNEY GENERAL OF THE
UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order
of the Board of Immigration Appeals
(Agency No. A22 519 499)
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
December 12, 2005
Before: ROTH, RENDELL and AMBRO, Circuit Judges
(Filed: February 14, 2006)
_______________________
OPINION
_______________________
PER CURIAM
Abdessalem Lourghi seeks review of his final order of removal.1 We will dismiss
the petition for lack of jurisdiction.
Lourghi, a citizen and native of Algeria, entered the United States in 1983
allegedly as a nonimmigrant visitor. In 2003, Lourghi was served a Notice to Appear,
charging him with being removable pursuant to 8 U.S.C. § 1182(a)(6)(A)(i) for being
present without being inspected, admitted or paroled. Response to Habeas Pet.
(hereinafter “Response”), Exh. A. Lourghi challenged the specific charge, but conceded
his removability for being an overstay nonimmigrant. The Immigration Judge (“IJ”)
found Lourghi removable as charged. Response, Exh. B. The IJ also denied Lourghi’s
application for asylum as untimely and denied statutory withholding of removal and relief
under the Convention Against Torture. Id. Lourghi filed a notice of appeal. Response,
Exh. C. The Board of Immigration Appeals (“BIA”) dismissed the appeal for lack of
jurisdiction, finding that Lourghi had waived his right to appeal during the proceedings
before the IJ and had not made any claim that the waiver was not knowing and intelligent.
Response, Exh. D.
A court may review a final order of removal only if the petitioner has exhausted all
1
This proceeding was initiated in 2003 when Lourghi filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241 in the District Court for the District of New
Jersey. On May 11, 2005, the Real ID Act of 2005 took effect, eliminating habeas
jurisdiction over orders of removal and directing that all habeas petitions pending in
district courts should be transferred to the appropriate court of appeals as a petition for
review. On May 19, 2005, the District Court entered an order and opinion denying
Lourghi’s petition. Shortly thereafter, the District Court vacated its order and transferred
the matter to his Court as a petition for review.
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of the administrative remedies available to him as of right. 8 U.S.C. § 1252(d)(1).
Lourghi has not exhausted his claims. Lourghi’s claim that he is entitled to relief under
the Convention is clearly a claim that could have been raised on appeal to the BIA. See
Bonhometre v. Gonzales, 414 F.3d 442, 448 (3d Cir. 2005). Although Lourghi attempted
to raise the claim in his notice of appeal, he had previously waived the right to appeal.
See 8 C.F.R. § 1003.3(a)(1) (“A Notice of Appeal may not be filed by any party who has
waived appeal”); 8 C.F.R. § 1003.38(b) (same). Also, to the extent Lourghi is seeking
cancellation of removal pursuant to INA § 212(h), it does not appear that he applied for
such relief. 8 U.S.C. § 1182(h); 8 C.F.R. § 1212.7.
Accordingly, we will dismiss the petition for lack of jurisdiction.
3