                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-14-2006

Lourghi v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2873




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Recommended Citation
"Lourghi v. Atty Gen USA" (2006). 2006 Decisions. Paper 1583.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1583


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                                                        NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT

                                NO. 05-2873
                             ________________

                        ABDESSALEM LOURGHI,
                                       Petitioner

                                      vs

                     ATTORNEY GENERAL OF THE
                          UNITED STATES,
                                       Respondent

                  ____________________________________

                     On Petition for Review of an Order
                     of the Board of Immigration Appeals
                          (Agency No. A22 519 499)
                _______________________________________


                  Submitted Under Third Circuit LAR 34.1(a)
                             December 12, 2005

             Before: ROTH, RENDELL and AMBRO, Circuit Judges

                         (Filed:   February 14, 2006)


                         _______________________

                                OPINION
                         _______________________

PER CURIAM
       Abdessalem Lourghi seeks review of his final order of removal.1 We will dismiss

the petition for lack of jurisdiction.

       Lourghi, a citizen and native of Algeria, entered the United States in 1983

allegedly as a nonimmigrant visitor. In 2003, Lourghi was served a Notice to Appear,

charging him with being removable pursuant to 8 U.S.C. § 1182(a)(6)(A)(i) for being

present without being inspected, admitted or paroled. Response to Habeas Pet.

(hereinafter “Response”), Exh. A. Lourghi challenged the specific charge, but conceded

his removability for being an overstay nonimmigrant. The Immigration Judge (“IJ”)

found Lourghi removable as charged. Response, Exh. B. The IJ also denied Lourghi’s

application for asylum as untimely and denied statutory withholding of removal and relief

under the Convention Against Torture. Id. Lourghi filed a notice of appeal. Response,

Exh. C. The Board of Immigration Appeals (“BIA”) dismissed the appeal for lack of

jurisdiction, finding that Lourghi had waived his right to appeal during the proceedings

before the IJ and had not made any claim that the waiver was not knowing and intelligent.

Response, Exh. D.

       A court may review a final order of removal only if the petitioner has exhausted all


   1
      This proceeding was initiated in 2003 when Lourghi filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241 in the District Court for the District of New
Jersey. On May 11, 2005, the Real ID Act of 2005 took effect, eliminating habeas
jurisdiction over orders of removal and directing that all habeas petitions pending in
district courts should be transferred to the appropriate court of appeals as a petition for
review. On May 19, 2005, the District Court entered an order and opinion denying
Lourghi’s petition. Shortly thereafter, the District Court vacated its order and transferred
the matter to his Court as a petition for review.
                                             2
of the administrative remedies available to him as of right. 8 U.S.C. § 1252(d)(1).

Lourghi has not exhausted his claims. Lourghi’s claim that he is entitled to relief under

the Convention is clearly a claim that could have been raised on appeal to the BIA. See

Bonhometre v. Gonzales, 414 F.3d 442, 448 (3d Cir. 2005). Although Lourghi attempted

to raise the claim in his notice of appeal, he had previously waived the right to appeal.

See 8 C.F.R. § 1003.3(a)(1) (“A Notice of Appeal may not be filed by any party who has

waived appeal”); 8 C.F.R. § 1003.38(b) (same). Also, to the extent Lourghi is seeking

cancellation of removal pursuant to INA § 212(h), it does not appear that he applied for

such relief. 8 U.S.C. § 1182(h); 8 C.F.R. § 1212.7.

       Accordingly, we will dismiss the petition for lack of jurisdiction.




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