Ravi Singh v. U.S. Attorney General

Filing

Opinion issued by court as to Petitioner Ravi Singh. Decision: Affirmed. Petition Denied. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-11442

Date Filed: 05/05/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-11442
Non-Argument Calendar
________________________
Agency No. A073-789-753
RAVI SINGH,
a.k.a. Christopher Singh,
Petitioner,
versus

U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(May 5, 2017)
Before HULL, JORDAN and ROSENBAUM, Circuit Judges.
PER CURIAM:

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Ravi Singh petitions for review of the Board of Immigration Appeals’
(“BIA”) final order affirming the Immigration Judge’s (“IJ”) denial of his
application for asylum, withholding of removal, and relief under the United
Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment (“CAT”). On appeal, Singh does not challenge the
denial of his claims for asylum, withholding of removal, and CAT relief. Instead,
Singh challenges the IJ’s underlying determination that Singh is removable under
the Immigration and Nationality Act (“INA”) § 237(a)(2)(B)(i), 8 U.S.C.
§ 1227(a)(2)(B)(i), for being convicted of a controlled substance offense.
Specifically, Singh contends that his Florida conviction for possession of cannabis
with intent to sell or deliver, in violation of Florida Statutes § 893.13(1)(a)(2), does
not qualify as a violation of any state, federal, or foreign law “relating to a
controlled substance,” within the meaning of § 1227(a)(2)(B)(i).
The problem for Singh is that he did not raise this particular issue before the
BIA or indeed any issue with respect to his removability under § 1227(a)(2)(B)(i),
as the BIA itself pointed out. This Court may review a final order of removal only
if the alien has exhausted all administrative remedies available to him as a matter
of right. INA § 242(d)(1), 8 U.S.C. § 1252(d)(1). The exhaustion requirement is
jurisdictional and precludes review of a claim that was not presented to the BIA,
even if the BIA considered it sua sponte. Amaya-Artunduaga v. U.S. Att’y Gen.,
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463 F.3d 1247, 1250 (11th Cir. 2006). The exhaustion doctrine requires the
petitioner to raise claims before the BIA to ensure it had a full opportunity to
consider the petitioner’s claims. Id. Because Singh failed to exhaust his
administrative remedies as to his removability under § 1227(a)(2)(B)(i), we lack
jurisdiction to consider his petition for review.
Singh points to INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C), which strips
courts of jurisdiction to review a final order of removal based on, inter alia,
§ 1227(a)(2)(B) except to the extent the petition for review raises constitutional
claims or questions of law. See INA § 242(a)(2)(C) & (D),8 U.S.C.
§ 1252(a)(2)(C) & (D). Singh argues that because this Court always has
jurisdiction to determine whether it has subject matter jurisdiction pursuant to
§ 1252(a)(2)(C), “the question of whether [Singh] is subject to removal in
accordance with 8 U.S.C. § 1227(a)(2)(B)(i) is properly and squarely before the
Court.”
It is true, as Singh contends, that subject matter jurisdiction cannot be
waived, and it is also true that this Court must inquire into its subject matter
jurisdiction when it is in doubt. See United States v. Cotton, 535 U.S. 625, 630,
122 S. Ct. 1781, 1785 (2002); Chacon-Botero v. U.S. Att’y Gen., 427 F.3d 954,
956 (11th Cir. 2005). However, it does not follow that this Court must reach the
merits of Singh’s appeal. Even if we ordinarily would have jurisdiction to review
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Singh’s “relating to a controlled substance” argument, he still failed to exhaust that
issue before the BIA. As noted above, the failure to exhaust a claim before the
BIA is jurisdictional and precludes review of that claim in this Court. See AmayaArtunduaga, 463 F.3d at 1249-50. Thus, even if Singh’s arguments are not barred
by § 1252(a)(2)(C) and (D), they are barred by § 1252(d)(1) for a lack of
exhaustion.
We acknowledge that some constitutional challenges and due process claims
do not require exhaustion—“where [a] claim is within the purview of the BIA
which can provide a remedy, the exhaustion requirement applies with full force.”
Sundar v. INS, 328 F.3d 1320, 1325 (11th Cir. 2003) (concluding that the
petitioner should have exhausted his due process challenge to the BIA’s
interpretation of an immigration statute before the BIA because the BIA had full
authority to reconsider its previous decision interpreting the statute). The BIA has
authority to review an IJ’s decision in removal proceedings, including a decision
related to § 1227(a)(2)(B)(i), and can reverse that decision if it so chooses. 8
C.F.R. § 1003.1(b)(3), (e)(5)-(6). In fact, the BIA has done so numerous times in
the past. See, e.g., In re Dominguez-Rodriguez, 26 I. & N. Dec. 408, 409, 413-414
(B.I.A. 2014) (vacating an IJ’s decision that the respondent’s prior drug offense
fell within the personal-use exception of § 1227(a)(2)(B)(i)); In re Zorilla-Vidal,
24 I. & N. Dec. 768, 768-69, 770 (B.I.A. 2009) (vacating an IJ’s decision that
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solicitation of cocaine delivery under Florida law is not an offense “relating to a
controlled substance” under § 1227(a)(2)(B)(i)); In re Moncada-Servellon, 24 I. &
N. Dec. 62, 67-68 (B.I.A. 2007) (vacating an IJ’s decision that the respondent’s
California conviction for possession of marijuana in prison fell within the scope of
the personal-use exception of § 1227(a)(2)(B)(i)). Similarly here, had Singh
properly challenged before the BIA the IJ’s ruling that he was removable for being
convicted of an offense “relating to a controlled substance” under
§ 1227(a)(2)(B)(i), the BIA could have considered his argument and, if it had
merit, reversed the IJ’s decision. Singh declined to do so.
Because the BIA was able to provide the relief Singh sought, Singh was
required to present his arguments about his removability under § 1227(a)(2)(B)(i)
to the BIA in the first instance to ensure that the agency had a full opportunity to
consider them. See Amaya-Artunduaga, 463 F.3d at 1249-50. Singh did not, so
this Court lacks jurisdiction to review his petition for review.
PETITION DENIED.

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