[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

F O R THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

FEBRUARY 7, 2007

THOMAS K. KAHN

N o s. 05-16744; 06-11377

CLERK

N o n - A r g u m e n t Calendar

B IA No. A37-591-546

G L E N NAZIM KHAN,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

P etitio n s for Review of a Decision of the

B o ard of Immigration Appeals

(F eb ru a ry 7, 2007)

B efo re BLACK, MARCUS and WILSON, Circuit Judges.

P E R CURIAM:

G len Nazim Khan, a native and a citizen of Trinidad and Tobago, petitions

th is Court for review of two decisions of the Board of Immigration Appeals ("B IA "). Khan appeals the BIA's decision to deny his request for a waiver of in ad m issib ility and order of removal. Khan also appeals the BIA's decision to d e n y his motion for reconsideration, and Khan's appeal from this decision has been co n so lid ated with his original petition for review.

BACKGROUND K h an was admitted to the United States as an immigrant on January 7, 1982.

On August 26, 1991, Khan pled guilty and was convicted of manslaughter with a d e a d ly weapon - a pistol, for which he received a term of imprisonment of fifteen years followed by five years probation. The Immigration and Naturalization S e rv ic e ("INS"), now the Department of Homeland Security ("DHS"), issued Khan a Notice to Appear, charging him with removal for having been convicted of an ag g rav ated felony, at any time after admission, in violation of INA § 237(a)(2)(A)(iii), 8U.S.C. § 1227(a)(2)(A)(iii), and for, at any time after ad m issio n , having been convicted "under any law of purchasing, selling, offering fo r sale, exchanging, using, owning, possessing, or carrying a firearm," in violation o f INA § 237(a)(2)(C), 8U.S.C. § 1227(a)(2)(C). Khan filed for a waiver of in a d m is sib ility pursuant to former section INA § 212(c), 8U.S.C. § 1182(c).1 1 Under INA § 212(c), the Attorney General, or one of his representatives, could waive the deportation of an admittedly deportable alien based upon various equitable considerations.

See 8U.S.C. § 1182(c) (repealed 1996) (requiring that the alien be a lawful permanent resident A t his initial hearing, the Immigration Judge ("IJ") asked Khan if he had "e v e r been convicted . . . of manslaughter with a deadly weapon in case number 9 1 2 4 0 4 ." Khan replied that "[w]ith all due respect, I think if I answer, I'll be a w itn e s s against myself." The government informed the IJ that the court had c er tif ie d copies of the conviction. At a later hearing on his application for a w aiv er, Khan testified extensively to the details surrounding his arrest for second d eg ree murder and ultimate guilty plea to manslaughter with a deadly weapon.

The IJ found Khan subject to removal from the United States and denied Khan a w aiv er of inadmissibility based on the IJ's discretion after balancing the equities of th e facts in Khan's case. The BIA adopted the IJ's decision and affirmed. Khan filed a petition for review in this Court and also filed a motion to reconsider with th e BIA. Khan argues that the BIA committed reversible error by failing to both p ro p erly analyze the equities in his case and explain why the equities in his favor w e re not considered unusual or outstanding. Khan also argues that the BIA co m m itted reversible error by improperly imposing a requirement that Khan waive and have domiciled in the United States for seven continuous years to be eligible for a discretionary waiver).

In INS v. St. Cyr, 533 U.S. 289, 326, 121 S. Ct. 2271, 2293, 150 L. Ed. 2d 347 (2001), the United States Supreme Court held that even though § 212(c) had been repealed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), relief remained available to aliens "whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for 212(c) relief at the time of their plea under the law then in effect." As Khan pled guilty to manslaughter with a deadly weapon in 1991 and served less than five years in prison, he was eligible for relief under the former § 212(c). See Del Pilar v. U.S. Att'y Gen., 326 F.3d 1154, 1156 n.1 (11th Cir. 2003) (per curiam). h is right to remain silent under the Fifth Amendment in order to obtain d iscretio n ary relief under § 212(c). Khan raises no arguments in his brief as to the B I A 's denial of his motion for reconsideration. Accordingly, he has abandoned an y arguments on this issue. Sepulveda v. U.S. Att'y Gen., 401 F.3d 1226, 1228-29 n .2 (11th Cir. 2005) (per curiam) (stating that when an appellant fails to raise an arg u m en t on an issue, that issue is deemed abandoned).

JURISDICTION Before reaching the merits of Khan's petition, we must first consider w h e th e r we have subject matter jurisdiction. "We review subject matter ju risd ictio n de novo." Garcia v. Att'y Gen., 329 F.3d 1217, 1220 (11th Cir. 2001) (p er curiam). Under the Immigration and Nationality Act, we lack jurisdiction to r ev ie w the final removal order of an alien who is removable for having committed an aggravated felony. See INA § 242(a)(2)(C), 8U.S.C. § 1252(a)(2)(C); INA § 2 3 7 (a)(2 )(A )(iii), 8U.S.C. § 1227(a)(2)(A)(iii). The term "aggravated felony" in clu d es "a crime of violence . . . for which the term of imprisonment [is] at least o n e year." INA § 101(a)(43)(F), 8U.S.C. § 1101(a)(43)(F). Our jurisdiction is lim ited only to the threshold issues of whether Khan is "(1) an alien (2) who is r em o v a b le (3) because he committed a criminal offense enumerated in the statute." Resendiz-Alcaraz v. U.S. Att'y Gen., 383 F.3d 1262, 1266 (11th Cir. 2004). If th ese conditions are met, we are divested of jurisdiction to review the deportation o rd er. See Tovar-Alvarez v. Att'y Gen., 427 F.3d 1350, 1352 (11th Cir. 2005) (per c u r ia m ) .

K h an was ordered removed based on his aggravated felony conviction.

Khan does not challenge that he is removable based on his conviction. Khan ch allen g es the order based on the discretion afforded the BIA in considering w h eth er an alien is eligible for relief from deportation under § 212(c). We do not h av e jurisdiction over "any other decision or action of the Attorney General or the S ecretary of Homeland Security the authority for which is specified . . . to be in the d iscretio n of the Attorney General or Secretary of Homeland Security. . . ." INA § 242(a)(2)(B)(ii), 8U.S.C. § 1252(a)(2)(B)(ii). Relief from removal pursuant to th e former INA § 212(c) is discretionary. 8U.S.C. § 1182 (repealed 1996).

Therefore, we lack jurisdiction over this part of Khan's appeal.

H o w ev er, Khan alleges that the BIA violated his Fifth Amendment right a g a in s t self-incrimination. We retain jurisdiction to review substantial co n stitu tio n al claims or questions of law arising out of removal proceedings. See IN A § 242(a)(2)(D), 8U.S.C. § 1252 (a)(2)(D); Farquharson v. U.S. Att'y Gen., 2 4 6 F.3d 1317, 1322 (11th Cir. 2001).

SUBSTANTIAL CONSTITUTIONAL ISSUES K h a n argues that the IJ and the BIA constitutionally erred by requiring that K h an waive his Fifth Amendment right against self-incrimination before he could a rg u e for relief under § 212(c). At his initial hearing, the IJ asked Khan if he had e v e n been convicted of manslaughter, and Khan chose not to answer. The IJ u ltim ately sustained Khan's judgment and conviction for manslaughter based on th e admission of certified copies of the judgment. In seeking a waiver pursuant to § 212(c), Khan discussed, at length, the details surrounding the incident that led to h is plea and conviction. Khan first raised his Fifth Amendment claim in this p etitio n for review. We have interpreted the exhaustion requirement of INA § 2 4 2 (d )(1 ), 8U.S.C. § 1252(d)(1), to preclude jurisdiction over claims that have not b een raised before the BIA. Sundar v. INS, 328 F.3d 1320, 1323-25 (11th Cir. 2 0 0 3 ) . Constitutional challenges, and some due process challenges, do not require ex h au stio n because the BIA does not have the authority to adjudicate those claims.

Id. at 1325. However, where the BIA can provide a remedy to the constitutional c la im , "the exhaustion requirement applies with full force." Id. If Khan had raised th e issue before the BIA, it would have been within the authority of the BIA to d e te rm in e whether the IJ had required Khan to waive his right against selfin crim in atio n before allowing Khan to proceed with his waiver argument.

Furthermore, the BIA would also have had the authority to determine whether the IJ impermissibly placed excessive weight on Khan's silence relative to the te stim o n y and evidence he provided. Since Khan did not allege that the IJ violated h is Fifth Amendment rights as part of his appeal before the BIA, we dismiss his p etitio n for failure to exhaust his administrative remedies.2 E v en if Khan had not failed to exhaust his administrative remedies, his Fifth A m e n d m e n t claim is without merit. There is no evidence the IJ or BIA required th at Khan waive his right against self-incrimination before allowing him to argue f o r a waiver of inadmissability. The record shows that the IJ and the BIA had ex ten siv e testimony and evidentiary submissions with which to conclude that the reaso n s for removing Khan outweighed the equities in favor of him remaining in th e country. Therefore, Khan has failed to raise a substantial constitutional arg u m en t that affects our limited jurisdiction to review the BIA's deportation o rd er.

Accordingly, the petition is dismissed.

PETITION DISMISSED.

2 In his reply brief, Khan argues that he has raised a substantial question of law, which is whether the IJ impermissibly used Khan's decision to remain silent as the major reason for denying his waiver of inadmissibility and ordering his removal. This argument is without merit. First, the invocation of a person's Fifth Amendment right against self-incrimination in a removal proceeding may be the basis of an adverse inference. INS v. Lopez-Mendoza, 468 U.S. 1032, 1043-44, 104 S. Ct. 3479, 3486, 82 L. Ed. 2d 778 (1984). Second, even if the IJ did make an adverse inference against Khan for his initial choice to remain silent, there is no evidence that this was the major reason for denying his waiver of inadmissability and ordering his removal.