Marvin Garcia v. Eric Holder, Jr.

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Marvin Garcia v. Eric Holder, Jr. Doc. 0 Case: 09-60627 Document: 00511193038 Page: 1 Date Filed: 08/03/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 09-60627 S u m m a r y Calendar August 3, 2010 Lyle W. Cayce Clerk M A R V I N GARCIA, P e titio n e r v. E R I C H. HOLDER, JR., U.S. ATTORNEY GENERAL, R espon dent P e tit io n for Review of an Order of the B o a r d of Immigration Appeals B I A No. A043 576 801 B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. P E R CURIAM:* P e t itio n e r Marvin Garcia, a native and citizen of Trinidad and Tobago, s e e k s our review of the decision of the Board of Immigration Appeals (BIA) d is m is s in g his appeal and affirming the determination of the Immigration Judge (I J ) that Garcia was removable and not entitled to protection under the C o n v e n t io n Against Torture (CAT). Garcia contends that the IJ and BIA erred in ruling that his Pennsylvania state conviction for possession with the intent to distribute marijuana was an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(ii), thereby making him removable. He also contends that the Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. * Dockets.Justia.com Case: 09-60627 Document: 00511193038 Page: 2 No. 09-60627 Date Filed: 08/03/2010 B I A engaged in impermissible fact finding in making this determination. As G a r c i a has not renewed his challenge to the determination that he failed to e s t a b lis h a claim for relief under the CAT, however, he has abandoned that c la im . See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003). T h e Respondent contends that we should not address Garcia's challenge t o the ruling that he is removable based on a conviction for an aggravated felony. The Respondent notes that the IJ's removal order was alternatively based on a d e t e r m in a t io n that Garcia's state conviction also constituted a controlled s u b s t a n c e offense under 8 U.S.C. § 1227(a)(2)(B)(i). G a r c ia asserts that the Respondent failed to comply with procedural r e q u ir e m e n t s and has waived any challenge to Garcia's argument. The claim is u n a v a ilin g , however, as an appellee cannot waive an argument; neither are we b o u n d by an appellee's concession of error. United States v. Hope, 545 F.3d 293, 2 9 5 (5th Cir. 2008). G a r c ia fails to challenge the determination that he was removable under § 1227(a)(2)(B)(i), claiming that he is not required to address a claim for relief fr o m removal prior to a determination of his removability. Garcia fails to r e c o g n iz e that he sought relief from removal before the IJ and the BIA. He has n e ith e r argued that he is eligible for cancellation of removal nor challenged the d e t e r m in a t io n that he is statutorily ineligible for cancellation of removal. Thus, a n y claim in this regard is unexhausted. See Roy v. Ashcroft, 389 F.3d 132, 137 (5 t h Cir. 2004); Wang v. Ashcroft, 260 F.3d 448, 452-53 (5th Cir. 2001). A s the IJ's decision that Garcia was removable under § 1227(a)(2)(B)(i) is u n c h a lle n g e d and would not be altered even if we were to rule favorably on his c h a lle n g e to the determination that he was convicted of an aggravated felony, w e need not address the issues raised by Garcia. See Capital Concepts Props. 8 5 -1 v. Mut. First, Inc., 35 F.3d 170, 176 (5th Cir. 1994). G a r c ia 's petition for review and his motion for stay of deportation are DENIED. 2

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