                               UNPUBLISHED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Petition denied by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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       Ann.    § 18.2-248.          It       was    noted        that       Powell’s

conviction          was     both    an     aggravated           felony       and    a    controlled

substance offense.

                This court lacks jurisdiction, except as provided in 8

U.S.C.     §    1252(a)(2)(D)         (2006),         to    review      the    final       order    of

removal        of    an    alien    convicted         of    certain      enumerated            crimes,

including           an    aggravated       felony          or    a    controlled           substance

violation.                 Under     § 1252(a)(2)(C),                 this      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.              Ramtulla v.

Ashcroft, 301 F.3d 202, 203 (4th Cir. 2002).                                   Once we confirm

these      two        factual       determinations,              then,       under         8     U.S.C.

§ 1252(a)(2)(C),             (D),     we    can       only       consider          “constitutional

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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     in    1984.            Under      INA       §    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      for        having    been        convicted       of    a    controlled

substance       offense       at     any    time        after       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          to         consider

constitutional claims and questions of law.                            Powell claims he is

not    removable       because      he     recited       the       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,    as     this    court       has     rejected          a    similar    claim.            See

Dragenice v. Gonzales, 470 F.3d 183, 188 (4th Cir. 2006).

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             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).              Powell did not raise this claim before

the    immigration       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    administrative

remedies available to the alien as of right[.]”                      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.                  Asika v. Ashcroft, 362 F.3d

264, 267 n.3 (4th Cir. 2004).                  Because Powell did not apply for

§ 212(h)     relief,     we    do    not   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.          We grant Powell’s motion for in forma pauperis

status.      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



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adequately   presented   in   the   materials   before   the   court   and

argument would not aid the decisional process.

                                                         PETITION DENIED




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