Sallahadin Birhan v. Eric Holder, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: A076-911-298 Copies to all parties and the district court/agency. [998918362]. Mailed to: Sallahadin Birhan. [12-1690]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-1690

SALLAHADIN BIRHAN,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.

On Petition for Review of an Order of the Board of Immigration
Appeals.

Submitted:

August 10, 2012

Decided:

August 17, 2012

Before GREGORY, DUNCAN, and KEENAN, Circuit Judges.

Petition dismissed by unpublished per curiam opinion.

Sallahadin Birhan, Petitioner Pro Se.
Robbin Kinmonth Blaya,
Office of Immigration Litigation, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Sallahadin Birhan, a native and citizen of Ethiopia,
petitions for review of an order of the Board of Immigration
Appeals

(“Board”)

judge’s

order

dismissing

finding

him

his

appeal

removable

from

the

because

immigration

he

had

been

convicted of an aggravated felony and a controlled substance
offense.

We dismiss the petition for review.
Under

INA

§ 1227(a)(2)(A)(iii)

§ 237(a)(2)(A)(iii),

(West

2005

&

Supp.

8

2012),

U.S.C.A.

an

alien

is

removable for having been convicted of an aggravated felony at
any time after admission.

Under INA § 101(a)(43)(B), 8 U.S.C.A.

§ 1101(a)(43)(B) (West 2005 & Supp. 2012), an aggravated felony
includes “illicit trafficking in a controlled substance . . .
including a drug trafficking crime (as defined in section 924(c)
of Title 18)[.]”

In addition, a conviction for a conspiracy to

commit a drug trafficking crime is also an aggravated felony.
See INA § 101(a)(43)(U); 8 U.S.C.A. § 1227(a)(43)(U).

Under 18

U.S.C. § 924(c)(2), a drug trafficking crime means any felony
punishable

under

§ 237(a)(2)(B)(i),

the
8

Controlled
U.S.C.A.

Substances

Act.

§ 1227(a)(2)(B)(i),

Under
an

alien

INA
is

deportable for having been convicted of a controlled substance
offense at any time after admission.
Under
lacks

8

U.S.C.

jurisdiction,

§

1252(a)(2)(C)

except

as
2

(2006),

provided

in

this
8

court
U.S.C.

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§ 1252(a)(2)(D) (2006), to review the final order of removal of
an alien convicted of certain enumerated crimes, including an
aggravated felony.

Under § 1252(a)(2)(C), this court retains

jurisdiction “to review factual determinations that trigger the
jurisdiction-stripping provision, such as whether [Birhan] [i]s
an alien and whether []he has been convicted of an aggravated
felony.”

Ramtulla v. Ashcroft, 301 F.3d 202, 203 (4th Cir.

2002).

Once

the

court

confirms

these

two

factual

determinations, then, under 8 U.S.C. § 1252(a)(2)(C), (D), it
can only consider “constitutional claims or questions of law.”
See Mbea v. Gonzales, 482 F.3d 276, 278 n.1 (4th Cir. 2007).
Birhan, who is proceeding pro se, does not challenge
the

finding

despite

that

the

he

pending

was

convicted

appeal.

of

Birhan’s

an

aggravated

failure

to

felony

raise

this

challenge in his opening informal brief results in abandonment
of the claim.

See Ngarurih v. Ashcroft, 371 F.3d 182, 189 n.7

(4th Cir. 2004); Edwards v. City of Goldsboro, 178 F.3d 231, 241
n.6 (4th Cir. 1999) (same).

Therefore, we neither review the

finding that he had a prior conviction of an aggravated felony
nor

address

the

issue

of

whether

a

conviction

is

final

for

immigration purposes if the direct appeal is pending.
Birhan does challenge his counsel’s effectiveness and
claims he was denied due process because he should have been
able to apply for relief under the Convention Against Torture.
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Because Birhan failed to exhaust these issues below, this court
is without jurisdiction to review.

See 8 U.S.C. § 1252(d)(1)

(2006); Massis v. Mukasey, 549 F.3d 631, 638-40 (4th Cir. 2008).
Because Birhan is an alien who was convicted of an
aggravated

felony

constitutional

and

claim

petition for review.
facts

and

materials

legal
before

or

he
a

does

not

question

of

raise
law,

an
we

exhausted

dismiss

the

We dispense with oral argument because the

contentions

are

adequately

the

and

argument

court

presented

would

not

in

the

aid

the

decisional process.
PETITION DISMISSED

4