                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT                    FILED
                          ________________________         U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                 August 30, 2005
                                No. 04-12793                    THOMAS K. KAHN
                            Non-Argument Calendar                   CLERK
                          ________________________

                            Agency No. A74-253-600

JOHN MCINTOSH,


                                                                        Petitioner,

                                     versus

U.S. ATTORNEY GENERAL,

                                                                      Respondent.


                          ________________________

                     Petition for Review of a Decision of the
                          Board of Immigration Appeals
                          _________________________
                                (August 30, 2005)

Before TJOFLAT, DUBINA, and BARKETT, Circuit Judges.

PER CURIAM:

      John McIntosh, through counsel, petitions this Court for review of the Board

of Immigration Appeals (“BIA”)’s order denying his application for adjustment of
status, Immigration and Nationality Act (“INA”) § 245, and application for waiver

of inadmissibility, INA § 242(h). McIntosh, a Canadian citizen and national, was

found inadmissible and statutorily ineligible for a waiver of inadmissiblity by the

BIA, based upon his 1986 Canadian conviction for smuggling a controlled

substance for the purpose of trafficking, and despite evidence that he received a

pardon for that conviction in 2001.

      On appeal, McIntosh argues that the immigration judge (“IJ”) failed to

consider the psychologist’s report he submitted concerning the extreme hardship to

his daughter that would result from his removal. He argues that his wife was

diagnosed with trigeminal neuralgia after the hearing before the IJ, and that the

diagnosis would result in extreme hardship to her. McIntosh makes the following

constitutional arguments: (1) the hardships imposed on his U.S. citizen wife and

daughter are extreme and would result in hardship violative of his due process

rights; and (2) the rejection of his Canadian pardon deprived him of his

constitutional right to equal protection. McIntosh also makes the legal, non-

constitutional arguments that (1) the IJ incorrectly determined that his removal

would not result in extreme hardship to his family, and (2) rejection of his

Canadian pardon is “unreasonable and arbitrary.”

                                      Discussion

      Even if we ultimately lack subject-matter jurisdiction over a petition for
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review, we retain jurisdiction to determine whether or not that subject-matter

jurisdiction exists. Brooks v. Ashcroft, 283 F.3d 1268, 1272 (11th Cir. 2002)

(“because judicial review is limited by statutory conditions, we retain jurisdiction

to determine only whether these conditions exist.”).

      Pursuant to INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C), “Notwithstanding

any other provision of law, no court shall have jurisdiction to review any final

order of removal against any alien who is removable by reason of having

committed a criminal offense covered in [8 U.S.C. §] 1182(a)(2) or

. . . 1227(a)(2)(B) . . . .” Section 1182(a)(2)(A)(II) includes any law of a foreign

country related to a controlled substance offense. Section 1227(a)(2)(B) includes

any law of a foreign country relating to controlled substances, with the exception

of a single offense of simple possession of less than 30 grams of marijuana.

However, INA § 242(a)(2)(D), 8 U.S.C. §1252(a)(2)(D) provides that “[N]othing

in subparagraph (C) . . . which limits or eliminates judicial review, shall be

construed as precluding review of constitutional claims or questions of law raised

upon a petition for review filed with an appropriate court of appeals in accordance

with this section.” Thus, due to his drug trafficking conviction, we are barred from

reviewing McIntosh’s petition for review, except to the extent that he raises

constitutional issues or questions of law. See INA § 242(a)(2)(C)-(D), 8 U.S.C. §

1252(a)(2)(C)-(D).
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      McIntosh’s first constitutional argument is without merit. McIntosh does

not explain how he was or would be deprived of his due process rights and this

record reflects that McIntosh and his wife and daughter have had ample process

throughout his removal proceedings, with opportunities to present their claims

before the immigration judge, the BIA, and this Court.

      For his second constitutional argument, concerning equal protection,

McIntosh does not specify the classification he challenges or cite to binding

authority for the proposition that the BIA’s rejection of his pardon violates his

equal protection rights. To the contrary, we previously have held that, “for

purposes of the United States immigration laws, a foreign pardon, in itself, does

not wipe out an alien’s foreign conviction or relieve him from the disabilities

which flow therefrom.” Mullen-Cofee v. I.N.S., 976 F.2d 1375, 1379 (11th Cir.

1992) (quoting Marino v. I.N.S., 537 F.2d 686, 691 (2d Cir.1976); and citing

Matter of M, 9 I. & N. Dec. 132, 134 (BIA 1960)).

      McIntosh points out that we did not consider an equal protection challenge

to the BIA’s action in Mullen-Cofee and cites the Ninth Circuit decision in

Dillingham v. I.N.S., 267 F.3d 996 (9th Cir. 2001), in support of his argument.

However, Dillingham is distinguishable from the instant case. In Dillingham, the

offense was a “simple drug possession offense that would have qualified for

federal first offender treatment had it occurred in the United States,” and the
                                           4
conviction had been expunged by the British government. Dillingham, 267 F.3d at

1000-01. The fact that Dillingham was convicted only of simple possession was

key to the holding in that case, as the Court analyzed the Equal Protection

implications of not recognizing a foreign expungement of a simple possession

conviction where the United States had a similar statute, the Federal First Offender

Act, expunging convictions of for first-time drug offenders guilty only of a simple

possession charge. Id. at 1005-08. McIntosh, unlike the defendant in Dillingham,

was not convicted of simple possession, but was convicted of smuggling 1,000

grams of a controlled substance for the purpose of trafficking it, and was sentenced

to 15 months’ imprisonment. Dillingham is therefore distinguishable.

      Finally, McIntosh cannot prevail on his legal, non-constitutional arguments

concerning the IJ’s determination that extreme hardship to his U.S. citizen wife and

daughter would result, and that the BIA’s rejection of his Canadian pardon was

unreasonable. The BIA correctly determined that McIntosh was statutorily

ineligible for a INA § 212(h) waiver of inadmissibility. Although INA

§ 212(h)(1)(B) allows waivers of inadmissibility based upon the extreme hardship

that would result to an alien’s U.S. citizen spouse, child, or parent, such a waiver is

limited to aliens who were deemed inadmissible under INA § 212(a)(2)(A)(i)(I),

(II), (B), (D), and (E), and specifically excludes INA § 212(a)(2)(C). See INA

§ 212(h). McIntosh is inadmissible based upon INA § 212(a)(2)(C) as a controlled
                                           5
substance trafficker. INA § 212(a)(2)(C); see also AR at 2, 83-84. Moreover, as

noted earlier, it cannot be said that the BIA’s rejection of his Canadian pardon was

unreasonable as we have held in Mullen-Cofee, that a foreign pardon does not

“wipe out” and alien’s foreign conviction for immigration purposes. Mullen-

Cofee, 976 F.2d at 1379.

      PETITION DENIED.




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