Marvin Powell v. Eric Holder, Jr. ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1857
MARVIN GAYE POWELL,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: August 13, 2013 Decided: August 21, 2013
Before WILKINSON, MOTZ, and AGEE, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Marvin Gaye Powell, Petitioner Pro Se. Edward Earl Wiggers,
Office of Immigration Litigation, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marvin Gaye Powell, a native and citizen of Jamaica,
petitions for review of an order of the Board of Immigration
Appeals (“Board”) dismissing his appeal from the immigration
judge’s order finding that Powell was removable and that he was
not eligible for asylum, withholding of removal or deferral of
removal under the Convention Against Torture (“CAT”).
Powell was found removable for having been convicted
of possession of cocaine with intent to distribute, in violation
of Va. Code Ann. § 18.2-248. It was noted that Powell’s
conviction was both an aggravated felony and a controlled
substance offense.
This court lacks jurisdiction, except as provided in 8
U.S.C. § 1252(a)(2)(D) (2006), to review the final order of
removal of an alien convicted of certain enumerated crimes,
including an aggravated felony or a controlled substance
violation. Under § 1252(a)(2)(C), this court retains
jurisdiction “to review factual determinations that trigger the
jurisdiction-stripping provision, such as whether [Powell] [i]s
an alien and whether []he has been convicted of an aggravated
felony” or controlled substance violation. Ramtulla v.
Ashcroft, 301 F.3d 202, 203 (4th Cir. 2002). Once we confirm
these two factual determinations, then, under 8 U.S.C.
§ 1252(a)(2)(C), (D), we can only consider “constitutional
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claims or questions of law.” § 1252(a)(2)(D); see Turkson v.
Holder, 667 F.3d 523, 527 (4th Cir. 2012).
Under 8 U.S.C. § 1227(a)(2)(A)(iii) (2006), an alien
is removable for having been convicted of an aggravated felony
at any time after admission. Powell was first admitted to this
country in 1984. Under INA § 101(a)(43)(B), 8 U.S.C.
§ 1101(a)(43)(B) (2006), an aggravated felony includes “illicit
trafficking in a controlled substance . . . including a drug
trafficking crime (as defined in section 924(c) of Title 18)[.]”
Under 18 U.S.C. § 924(c)(2), a drug trafficking crime means any
felony punishable under the Controlled Substances Act. Under
INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i), an alien is
also removable for having been convicted of a controlled
substance offense at any time after admission. Powell’s
conviction for possession of cocaine with intent to distribute,
for which he received a six year sentence, is clearly an
aggravated felony and a controlled substance offense.
Thus, we have only jurisdiction to consider
constitutional claims and questions of law. Powell claims he is
not removable because he recited the military oath when he
joined the United States Army and that by taking the oath he
became a national of the United States. This claim is without
merit, as this court has rejected a similar claim. See
Dragenice v. Gonzales, 470 F.3d 183, 188 (4th Cir. 2006).
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Powell also contends he is eligible for relief from
removal under Immigration and Nationality Act § 212(h), 8 U.S.C.
§ 1182(h)(1)(B) (2006). Powell did not raise this claim before
the immigration judge or the Board. Pursuant to 8 U.S.C.
§ 1252(d)(1), “[a] court may review a final order of removal
only if . . . the alien has exhausted all administrative
remedies available to the alien as of right[.]” This court has
noted that “an alien who has failed to raise claims during an
appeal to the [Board] has waived his right to raise those claims
before a federal court on appeal of the [Board’s] decision.”
Farrokhi v. INS, 900 F.2d 697, 700 (4th Cir. 1990); see also
Gonahasa v. INS, 181 F.3d 538, 544 (4th Cir. 1999). Moreover,
this court has held that it lacks jurisdiction to consider an
argument not made before the Board. Asika v. Ashcroft, 362 F.3d
264, 267 n.3 (4th Cir. 2004). Because Powell did not apply for
§ 212(h) relief, we do not have jurisdiction to review this
claim.
Because Powell does not raise a colorable
constitutional claim or a question of law, we deny the petition
for review. We grant Powell’s motion for in forma pauperis
status. We deny his second motion to stay and his motion to
reconsider the denial of his first motion to stay. We dispense
with oral argument because the facts and legal contentions are
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adequately presented in the materials before the court and
argument would not aid the decisional process.
PETITION DENIED
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