Marvin Powell v. Eric Holder, Jr., No. 13-1857 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-1857 MARVIN GAYE POWELL, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Submitted: August 13, 2013 Decided: August 21, 2013 Before WILKINSON, MOTZ, and AGEE, Circuit Judges. Petition denied by unpublished per curiam opinion. Marvin Gaye Powell, Petitioner Pro Se. Edward Earl Wiggers, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Marvin Gaye Powell, a native and citizen of Jamaica, petitions for review of an order of the Board of Immigration Appeals ( Board ) dismissing his appeal from the immigration judge s order finding that Powell was removable and that he was not eligible for asylum, withholding of removal or deferral of removal under the Convention Against Torture ( CAT ). Powell was found removable for having been convicted of possession of cocaine with intent to distribute, in violation of Va. Code conviction Ann. was § 18.2-248. both an It was aggravated noted felony that and a Powell s controlled substance offense. This court lacks jurisdiction, except as provided in 8 U.S.C. removal § 1252(a)(2)(D) of including an an violation. alien (2006), to review convicted of certain aggravated Under felony or a § 1252(a)(2)(C), the final order enumerated controlled this of crimes, substance court retains jurisdiction to review factual determinations that trigger the jurisdiction-stripping provision, such as whether [Powell] [i]s an alien and whether []he has been convicted of an aggravated felony or controlled substance violation. Ashcroft, 301 F.3d 202, 203 (4th Cir. 2002). these two factual § 1252(a)(2)(C), (D), determinations, we can only 2 then, consider Ramtulla v. Once we confirm under 8 U.S.C. constitutional claims or questions of law. § 1252(a)(2)(D); see Turkson v. Holder, 667 F.3d 523, 527 (4th Cir. 2012). Under 8 U.S.C. § 1227(a)(2)(A)(iii) (2006), an alien is removable for having been convicted of an aggravated felony at any time after admission. Powell was first admitted to this country INA in 1984. Under § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) (2006), an aggravated felony includes illicit trafficking in a controlled substance . . . including a drug trafficking crime (as defined in section 924(c) of Title 18)[.] Under 18 U.S.C. § 924(c)(2), a drug trafficking crime means any felony punishable under the Controlled Substances Act. Under INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i), an alien is also removable substance for offense having at any been time convicted after of a controlled admission. Powell s conviction for possession of cocaine with intent to distribute, for which he received a six year sentence, is clearly an aggravated felony and a controlled substance offense. Thus, we have only jurisdiction constitutional claims and questions of law. not removable because he recited the to consider Powell claims he is military oath when he joined the United States Army and that by taking the oath he became a national of the United States. This claim is without merit, similar as this court has rejected a claim. Dragenice v. Gonzales, 470 F.3d 183, 188 (4th Cir. 2006). 3 See Powell also contends he is eligible for relief from removal under Immigration and Nationality Act § 212(h), 8 U.S.C. § 1182(h)(1)(B) (2006). the immigration Powell did not raise this claim before judge or the Board. Pursuant to 8 U.S.C. § 1252(d)(1), [a] court may review a final order of removal only if . . . the alien has exhausted all remedies available to the alien as of right[.] administrative This court has noted that an alien who has failed to raise claims during an appeal to the [Board] has waived his right to raise those claims before a federal court on appeal of the [Board s] decision. Farrokhi v. INS, 900 F.2d 697, 700 (4th Cir. 1990); see also Gonahasa v. INS, 181 F.3d 538, 544 (4th Cir. 1999). Moreover, this court has held that it lacks jurisdiction to consider an argument not made before the Board. 264, 267 n.3 (4th Cir. 2004). § 212(h) relief, we do not Asika v. Ashcroft, 362 F.3d Because Powell did not apply for have jurisdiction to review this claim. Because Powell does not raise a colorable constitutional claim or a question of law, we deny the petition for review. status. We grant Powell s motion for in forma pauperis We deny his second motion to stay and his motion to reconsider the denial of his first motion to stay. We dispense with oral argument because the facts and legal contentions are 4 adequately presented in the materials before the court and argument would not aid the decisional process. PETITION DENIED 5
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