                                                                NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                      No. 13-1259
                                      ___________

                             TROY ADALE FREEMANTLE,
                                     Petitioner
                                         v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                 Respondent
                    ____________________________________

                        On Petition for Review of an Order of the
                             Board of Immigration Appeals
                              (Agency No. A205-017-788)
                      Immigration Judge: Honorable Leo A. Finston
                       ____________________________________

                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    August 26, 2013

            Before: AMBRO, HARDIMAN and ALDISERT, Circuit Judges

                             (Opinion filed: August 27, 2013)
                                      ___________

                                       OPINION
                                      ___________

PER CURIAM

       Petitioner, Troy Adale Freemantle, seeks review of the Board of Immigration

Appeals’ (BIA or Board) final order of removal. For the reasons discussed below, we

will deny the petition for review.
                                            1
                                             I.

       Freemantle is a native and citizen of Jamaica who was admitted to the United

States in 2003 and overstayed his visa. In June 2012, the Government charged him with

removability under 8 U.S.C. § 1227(a)(1)(B) (remaining in the United States longer than

permitted) and § 1227(a)(2)(B)(i) (having been convicted of a controlled substance

violation).1 Freemantle appeared before an Immigration Judge (IJ) and informed the

court that he had not been persecuted in Jamaica in the past, and did not fear that he

would be persecuted in the future if he were forced to return. Accordingly, he declined to

file an application for relief or protection from removal, and, on September 5, 2012, the

IJ ordered him removed to Jamaica.

       Freemantle appealed the IJ’s decision to the BIA, and requested that his case be

remanded to the IJ so that he could apply for adjustment of status (with a waiver of

inadmissibility under Immigration and Nationality Act (INA) § 212(h)), asylum,

withholding of removal, and protection under the Convention Against Torture (CAT).

With respect to his application for adjustment of status, Freemantle explained that his

wife and children—who are United States citizens—are financially dependent on him and

would suffer significant hardship if he were forced to return to Jamaica. Concerning his

proposed application for asylum and related relief, Freemantle alleged that he “has


1
 The record reflects that on February 10, 2012, Freemantle was convicted of two counts
of possession of a controlled dangerous substance with intent to distribute, in violation of
N.J. Stat. Ann. §§ 2C:35-5A(1) and 2C:35-5B(11). (AR000191-98.)

                                             2
longstanding problems with the Gang members, and corrupt Jamaican Police officers

who wish to fulfill their vendetta [with] Mr. Freemantle due to his involvement with them

in the past.” (AR000015.) He further alleged that a family member had recently been

killed in Jamaica in retaliation for Freemantle’s refusal to join the gangs there.

       The BIA declined to remand the matter and dismissed the appeal. The Board

determined that a remand was not warranted because: (1) Freemantle had not established

prima facie eligibility for adjustment of status because his two controlled substance

offenses rendered him statutorily ineligible for a waiver of inadmissibility under

§ 212(h); and (2) he failed to allege facts in support of his claims for asylum and related

relief that were not available at his hearing before the IJ. See 8 C.F.R. § 1003.2(c). This

petition for review followed.

                                             II.

       We have jurisdiction over this petition for review pursuant to 8 U.S.C. § 1252(a).

Generally, we lack jurisdiction to review a final order of removal against an alien, like

Freemantle, who is removable for having been convicted of a controlled substance

offense. 8 U.S.C. § 1252(a)(2)(C). We retain jurisdiction, however, to review any

constitutional or legal questions raised in his petition for review. See 8 U.S.C. §

1252(a)(2)(D); Cruz v. Att’y Gen., 452 F.3d 240, 246-47 (3d Cir. 2006). We exercise

plenary review over the BIA’s legal determinations. See Santos-Reyes v. Att’y Gen., 660

F.3d 196, 199 (3d Cir. 2011).


                                              3
       Freemantle’s primary argument on appeal is that the agency erred in finding him

removable under 8 U.S.C. § 1227(a)(2)(B)(i) because his conviction does not constitute a

federal felony or a crime involving moral turpitude. This Court lacks jurisdiction to

review this argument because Freemantle failed to exhaust it before the Board. See 8

U.S.C. § 1252(d)(1); Castro v. Att’y Gen., 671 F.3d 356, 365 (3d Cir. 2012). Freemantle

also argues that he was denied due process when he was deprived of the opportunity to

apply for asylum, withholding of removal, and CAT protection during the proceeding

before the IJ. Contrary to his contention, however, the record reflects that the IJ

discussed these forms of relief with Freemantle, but he affirmatively declined to seek any

relief or protection from removal. (AR000186-88.) Therefore, this argument is

meritless.

       We have carefully reviewed the record and see no other error in the BIA’s

decision. The BIA properly denied Freemantle’s request for a remand. First, the BIA

correctly concluded that he failed to establish prima facie eligibility for adjustment of

status because § 212(h) does not provide a waiver for aliens, like Freemantle, who have

been convicted of possession with intent to distribute marijuana. See 8 U.S.C.

§ 1182(a)(2)(A)(i)(II) and (h). Furthermore, with respect to his belated applications for

asylum and related relief, the BIA correctly noted that Freemantle failed to explain why

the persecution claim he put forth, and the evidence he submitted, could not have been

presented at his original hearing. See In re Coelho, 20 I. & N. Dec. 464, 471 (BIA 1992)

(“[W]here a motion to remand is really in the nature of a motion to reopen . . . , it must
                                              4
comply with the substantive requirements for such motions.”). While he argues on

appeal that he did not “learn of the current issues he would face” until after he was

ordered removed, (Br. 8), he was obligated to discover and present that evidence at his

hearing before the IJ. See 8 C.F.R. § 1003.2(c)(1) (providing that a motion to reopen

proceedings “shall not be granted unless it appears to the Board that evidence sought to

be offered is material and was not available and could not have been discovered or

presented at the former hearing.”) In any event, we have reviewed the record and

conclude that Freemantle failed to submit sufficient evidence to demonstrate prima facie

eligibility for such relief.

                                            III.

       For the foregoing reasons, the petition for review will be denied.2




2
 To the extent that Freemantle has included in his brief a request for a stay of removal,
such request is denied as moot.
                                            5
