Unpublished Disposition, 894 F.2d 409 (9th Cir. 1990)

MEMORANDUM^* 

Baghdik Baghdassarian, a native of Jordan, petitions for review of an order of the Immigration Judge finding him deportable and granting him voluntary departure to Jordan. Baghdassarian did not file an appeal with the Board of Immigration Appeals. Because Baghdassarian has failed to exhaust his administrative remedies, this court does not have jurisdiction to consider his petition for review. See Vargas v. INS, 831 F.2d 906, 907-08 (9th Cir. 1987).

Baghdassarian contends that he raises constitutional issues before us which empower this court to hear his petition. Circuit courts have jurisdiction over constitutional challenges which the Board of Immigration Appeals does not have jurisdiction to adjudicate. See id. at 908 (citations omitted). However, merely labelling a claim constitutional does not create a constitutional claim or guarantee an appellant the right to review in this court. Id. Baghdassarian's first two claims are not even colorably of constitutional dimension. His third is barred by his failure to invoke the proper procedures.

First, Baghdassarian contends that he was deprived of his due process right to a non-adversarial hearing by the INS district director when the INS instituted deportation proceedings against him before the district director had ruled on his asylum application. It is obvious that there is no constitutional right which guarantees an asylum applicant a non-adversarial hearing before an INS district director rather than an adversarial hearing before an immigration judge.

Second, Baghdassarian contends that 8 C.F.R. Sec. 208.3 conflicts with 8 C.F.R. Sec. 208.8, and 8 C.F.R. Sec. 201.8 conflicts with the Congressional intent of 8 U.S.C. § 1158(a). We decline to hear these claims because they present nonconstitutional questions of statutory interpretation. See Reid v. Engen, 765 F.2d 1457, 1462 (9th Cir. 1985).

Finally, Baghdassarian contends he was denied due process because the Immigration Judge coerced him into withdrawing his application for asylum and waiving his appeal. There are no facts in the record to support this contention. Any such claim must be presented in a petition to reopen or to reconsider or by means of some other appropriate motion which will permit applicant to seek to make the necessary factual record below. At present, this court is without jurisdiction to consider Baghdassarian's affirmative misconduct claims. See Abedi-Tajrishi v. INS, 752 F.2d 441, 443 (9th Cir. 1985) (this court lacks jurisdiction to consider a petitioner's affirmative misconduct claims which raise factual issues that have not been afforded an adequate hearing).

The petition for review is DISMISSED.