Jerry Kansou v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 15 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JERRY KANSOU, No. 19-71907
Petitioner, Agency No. A215-927-125
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 13, 2021**
Honolulu, Hawaii
Before: O’SCANNLAIN, MILLER, and LEE, Circuit Judges.
Petitioner Jerry Kansou asks this Court to grant his petition for review and to
reverse his order of removal. As the facts are known to the parties, we repeat them
only as necessary to explain our decision. We do not have jurisdiction to review
this petition, and we therefore deny it.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
This Court only has jurisdiction to review a petition to the extent the claims
presented were exhausted in front of the Board of Immigration Appeals (“BIA”).
Sola v. Holder, 720 F.3d 1134, 1135 (9th Cir. 2013) (per curiam); 8 U.S.C. §
1252(d)(1).
Kansou did not exhaust his claim in front of the BIA. Zara v. Ashcroft, 383
F.3d 927, 930 (9th Cir. 2004). Kansou is now arguing that his Hawaii convictions
for possessing methamphetamine are not related to a controlled substance within
the meaning of federal law. He did not raise this claim in front of the BIA.
Instead, he only argued (1) that his 2009 departure from the United States did not
interrupt his physical presence for purposes of eligibility for cancellation of
removal and (2) that he is in the process of challenging his Hawaii convictions
through a state post-conviction process.
Neither did the BIA choose to consider the now-raised claim on its own,
thereby exhausting it for Kansou. Abebe v. Gonzales, 432 F.3d 1037, 1041 (9th
Cir. 2005).
Finally, the BIA did not adopt the Immigration Judge’s decision, but merely
affirmed it. Id. at 1040–41. When the BIA adopts a decision, it states so
explicitly, and it did not do so here. We, thus, do not decide if Kansou properly
raised his claim in front of the Immigration Judge.
Since we do not have jurisdiction, we do not reach the issue of whether
2
Kansou’s Hawaii convictions are related to a controlled substance.
PETITION DISMISSED.
3