       [NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

          United States Court of Appeals
                      For the First Circuit


No. 01-2243

                          AHMET DIABATE,

                      Petitioner, Appellant,

                                v.

              IMMIGRATION AND NATURALIZATION SERVICE,

                       Respondent, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Reginald C. Lindsay, U.S. District Judge]


                              Before

                       Selya, Circuit Judge,
                 Campbell, Senior Circuit Judge,
                    and Lynch, Circuit Judge.



     Ahmet Diabate on brief pro se.
     Robert D. McCallum, Jr., Assistant Attorney General, Terri J.
Scadron, Senior Litigation Counsel, and Lyle D. Jentzer, Attorney,
Office of Immigration Litigation, on brief for appellee.



                          April 3, 2002
           Per Curiam. Ahmet Diabate, a native and citizen of

Guinea, appeals the district court's dismissal of the petition

he filed for a writ of habeas corpus under 28 U.S.C. § 2241.

An Immigration Judge found Diabate removable on account of his

conviction of an aggravated felony, pursuant to 8 U.S.C. §

1227(a)(2)(A)(iii), but granted his application for withholding

of removal under 8 U.S.C. § 1231(b)(3).               Diabate's § 2241

petition alleged that his due process rights were violated

during the INS's appeal to the Board of Immigration Appeals

("BIA") because he was never provided a copy of the transcripts
of the proceedings before the Immigration Judge.          Diabate also

challenges the BIA's denial of withholding of removal, claiming
that he established his eligibility for that relief as a matter
of law.

           Although the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA) eliminated judicial review
of final removal orders based on an alien's status as an

aggravated     felon,   federal    courts   "retain    subject   matter
jurisdiction over [§ 2241] habeas petitions brought by aliens
facing removal to the extent those petitions are based on

colorable claims of legal error, that is, colorable claims that
an   alien's   statutory   or     constitutional   rights   have   been
violated."     Carranza v. INS, 277 F.3d 65, 71 (1st Cir. 2002);

see INS v. St. Cyr, 533 U.S. 289, 314 n.38 (2001); Mahadeo v.
Reno, 226 F.3d 3, 8 (1st Cir. 2000), cert. denied, 121 S.Ct.

2590 (2001).

                                   -2-
              Accordingly, Diabate's due process claim was within

 the scope of § 2241 review.          However, since Diabate's brief to

 the BIA did no more than vaguely allude to the fact that he had
 not received the transcripts, we doubt that the due process

 claim was sufficiently exhausted.             See Bernal-Vallejo v. INS,

 195 F.3d 56, 64 (1st Cir. 1999); Ravindran v. INS, 976 F.2d

 754, 761 (1st Cir. 1992).          Moreover, even if we assume that the

 claim was exhausted, we find no prejudicial error.1

              Whether     the   district     court    had   jurisdiction     to

 consider the withholding of removal claim is less clear since
 deciding whether petitioner established his eligibility for

 that    relief    involves     a   review   of    both   factual   and   legal
 findings.    In any event, even assuming that the scope of habeas
 review extends to this kind of claim and that the district

 court should have considered it, we think petitioner has failed
 to establish that he was eligible for withholding of removal as
 a   matter   of   law.       The   evidence      petitioner   presented    was

 insufficient to compel a finding that his membership on, or
 defection from, Guinea's national soccer team constituted a
 political opinion or "membership in a particular social group"

 as the BIA has interpreted that phrase.                    See 8 U.S.C. §


     1
      To the extent Diabate contends that, under Accardi v.
Shaughnessy, 347 U.S. 260 (1954), no showing of prejudice was
required because the failure to provide the transcripts violated an
agency regulation or rule, we note that the argument is not
properly before us since petitioner did not raise it below. See
Amcel Corp. v. Int'l Exec. Sales, Inc., 170 F.3d 32, 35 (1st Cir.
1999); United States v. Slade, 980 F.2d 27, 30-31 (1st Cir. 1992).
In any event, the argument is meritless.

                                       -3-
1231(b)(3); Matter of Acosta, 19 I & N. Dec. 211, 233-34 (BIA

1985); accord Alvarez-Flores v. INS, 909 F.2d 1, 7 (1st Cir.

1990).
         Affirmed.




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