                                                            [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT           FILED
                        ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                               No. 07-15598                    NOV 12, 2008
                               No. 08-11097                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                           Agency No. A94-823-028

AARTI JAYANTAKUMAR SUTARIYA,

                                                                     Petitioner,

                                    versus

U.S. ATTORNEY GENERAL,

                                                                   Respondent.

                         ________________________

                    Petitions for Review of a Decision of the
                          Board of Immigration Appeals
                         _________________________

                             (November 12, 2008)

Before BIRCH, DUBINA and MARCUS, Circuit Judges.

PER CURIAM:

      Aarti Jayantakumar Sutariya, a female native and citizen of India, seeks

review of the Department of Homeland Security’s (“DHS”) final order of removal.
Sutariya argues that she was not removable because her state convictions for

making terroristic threats did not qualify as aggravated felony crimes of violence.

She also raises the following legal and constitutional claims: (1) the expedited

removal procedures were unfair because she was not properly served with the

expedited removal order; (2) she deserved a hearing during her expedited removal

proceedings and the opportunity to appeal any decision to the BIA; (3) the DHS

improperly failed to consider her application for asylum; and (4) she was denied

equal protection by being placed in expedited removal proceedings, rather that

general removal proceedings. After careful review, we dismiss the petitions in

part, and deny them in part.1

       We review our subject matter jurisdiction de novo. Gonzalez-Oropeza v.

U.S. Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003).

       We lack jurisdiction to review a final order of removal against an alien who

was removable, under 8 U.S.C. § 1227(a)(2)(A)(iii), based on her commission of

an aggravated felony. 8 U.S.C. § 1252(a)(2)(C). “Nonetheless, because judicial

review is limited by statutory conditions, we retain jurisdiction to determine

whether those conditions exist.” Camacho-Salinas v. U.S. Att’y Gen., 460 F.3d


       1
        Sutariya has abandoned the claim in her second petition for review -- challenging the Board
of Immigration Appeals’s (“BIA”) dismissal of her appeal from the immigration judge’s (“IJ”)
negative reasonable fear finding -- because she failed to raise this claim in her appellate brief. See
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005).
                                                 2
1343, 1346 (11th Cir. 2006). Accordingly, we may determine if the petitioner was

(1) an alien, (2) who was removable, (3) for having committed an aggravated

felony. Id. Pursuant to the REAL ID Act of 2005, we also have jurisdiction to

consider “constitutional claims or questions of law” raised in a petition for review

of a final order of removal. See Ali v. U.S. Att’y Gen., 443 F.3d 804, 809 (11th

Cir. 2006) (quotation marks omitted); 8 U.S.C. § 1252(a)(2)(C), (D).

      However, we may review a final order of removal only if “the alien has

exhausted all administrative remedies available to the alien as of right.” 8 U.S.C.

§ 1252(d)(1). Accordingly, “we lack jurisdiction to consider a claim raised in a

petition for review unless the petitioner has exhausted [her] administrative

remedies with respect thereto.” Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d

1247, 1251 (11th Cir. 2006). An alien who is notified of the DHS’s intent to issue

a final order of removal due to her commission of an aggravated felony and placed

in expedited removal proceedings has ten days to respond to the notice and

challenge the determination that she is an aggravated felon prior to the issuance of

a final order of removal. See 8 U.S.C. § 1228(b)(4); 8 C.F.R. § 238.1(c).

      As applied here, we lack jurisdiction over Sutariya’s argument that her state

convictions for making terroristic threats were not aggravated felonies. As the

record shows, she did not properly challenge that determination during her

                                         3
expedited removal proceedings; rather, the only point at which Sutariya appears to

have challenged it was in the context of her motion to an IJ for bond

redetermination, which did not directly challenge her removability and was filed

over ten days after she received notice of the DHS’s intent to issue a final order of

removal.2 Indeed, Sutariya admits in her brief that she did not properly challenge

the determination that she was an aggravated felon, saying that she “would have

challenged” it if she had been granted a hearing before an IJ. Thus, we lack

jurisdiction over this claim. See Lubowa v. U.S. Att’y Gen., 2008 WL 4148523, at

*2 (11th Cir. Sept. 10, 2008) (unpublished) (holding that we lack jurisdiction,

based on a failure to exhaust, where an alien in expedited removal proceedings

failed to challenge the DHS’s determination that he committed an aggravated

felony after receiving notice of the DHS’s intent to issue a final removal order on

that basis); see also Fonseca-Sanchez v. Gonzales, 484 F.3d 439, 443-44 (7th Cir.

2007).

       We likewise lack jurisdiction to review Sutariya’s equal protection and due

process claims regarding her removal proceedings. As the record shows, Sutariya


       2
          DHS issued a Notice of Intent to Issue a Final Administrative Removal Order as to Sutariya
on October 1, 2007, and its certificate of service indicated that a deportation officer attempted
service on Sutariya on October 30, 2007, but she refused to acknowledge receipt of the document
at that time. Nonetheless, the record demonstrates that Sutariya received the Notice of Intent before
October 30, because she filed a petition for review of the Notice with this Court on or about October
19, 2007.
                                                   4
did not raise any constitutional challenges to the final order of removal; rather, she

appears to only have raised some of them in her appeal of the IJ’s negative

reasonable fear finding, which not only was in a separate context and dealt with

different issues, but was filed more than ten days after she received notice of the

DHS’s intent to issue a final order of removal. Therefore, we also lack jurisdiction

over her constitutional challenges to the final order of removal. See Yang v. U.S.

Att’y Gen., 494 F.3d 1311, 1316 (11th Cir. 2007) (holding that we lack

jurisdiction over unexhausted equal protection claims); Amaya-Artunduaga, 463

F.3d at 1251 (holding that we lack jurisdiction over unexhausted due process

claims for which remedies could have been provided, which include procedural

due process claims).

      DISMISSED IN PART, DENIED IN PART.




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