                      United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT

                                   ___________

                                   No. 02-2201
                                   ___________

Rashid Halabi,                          *
                                        *
             Petitioner,                *
                                        * On Petition for Review of a
      v.                                 * Decision of the Board of
                                         * Immigration Appeals.
John D. Aschroft, Attorney              *
General of the United States,           *    [PUBLISHED]
                                        *
             Respondent.                 *
                                         *
                                    __________

                            Submitted: November 8, 2002
                                Filed: January 21, 2003
                                   ___________

Before MCMILLIAN and MELLOY, Circuit Judges, and FRANK,1 District Judge.
                          ___________

PER CURIAM.

       In this immigration case the petitioner, Rashid Halabi, a native and citizen of
Israel, seeks review of a final order of removal issued by the Board of Immigration
Appeals (“the Board”) on April 16, 2002. In its order, the Board affirmed the
Immigration Judge’s findings that the petitioner should be removed from the United


      1
         The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota, sitting by designation.
States under Section 237(a)(1)(B) of the Immigration and Nationality Act (“INA”),
8 U.S.C. § 1227(a)(1)(B), as a nonimmigrant who remained in the United States for
a time longer than authorized. The Board also affirmed the Immigration Judge’s
finding that the petitioner was ineligible for cancellation of removal under INA §
240A, 8 U.S.C. § 1229b. The latter finding was based on a determination that the
petitioner could not demonstrate ten years’ continuous physical presence in the
United States and that his deportation would not result in exceptional and extremely
unusual hardship to any qualifying person. See 8 U.S.C. § 1229b(b)(1)(A) and (D).


       Although the petitioner timely appealed the Board’s order,2 his appeal brief
does not raise any substantive challenge to the merits of the order. Instead, the
petitioner’s brief addresses only a pending motion to reopen that he allegedly filed
with the INS relating to a recent marriage and attempted change of status. The
petitioner’s administrative remedies concerning the motion to reopen are not
exhausted. See INA § 242(b)(9), 8 U.S.C. § 1252(b)(9) (“Judicial review of all
questions of law and fact . . . arising from any action taken or proceeding brought to
remove an alien from the United States under this subchapter shall be available only
in judicial review of a final order under this section.”); INA § 242(d)(1), 8 U.S.C. §
1252(d)(1) (conditioning judicial review of final orders of removal on aliens’
“exhaust[ion of] all administrative remedies available to [them] as of right”). This
court has not yet decided whether the exhaustion requirements of 8 U.S.C. § 1252 are
jurisdictional in nature. See Moussa v. INS, 302 F.3d 823, 825 (8th Cir. 2002)
(leaving open the question of whether § 1252(d)(1) is jurisdictional). Assuming we
do have jurisdiction, however, the petitioner has not persuaded us that the finality


      2
        After filing his appeal, the petitioner moved this court for a stay of removal
and release from custody pending appeal. That motion was denied on June 20, 2002,
as was the petitioner’s subsequent motion for reconsideration. At oral argument, the
court was informed that the petitioner had since been removed pursuant to the
Board’s final order.

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requirements set forth in the statute should be disregarded in his case. 8 U.S.C. §
1252(b)(9). Accordingly, we will not address the petitioner’s unexhausted arguments
regarding his recent marriage and its effect on his immigration status.


       The only final order before the court is the Board’s order of April 16, 2002.
It appears from the record that the petitioner admitted his removability under 8 U.S.C.
§ 1227(a)(1)(B). At issue, then, is the Board’s affirmation of the Immigration Judge’s
finding that the petitioner was ineligible for cancellation of removal because he could
not demonstrate the continuous physical presence and/or extreme hardship requisite
to the Attorney General’s discretionary exercise of relief under 8 U.S.C. § 1229b(b).
The controlling statute expressly states that denials of discretionary relief, such as that
offered under 8 U.S.C. § 1229b, are not subject to review by the courts. See 8 U.S.C.
§ 1252(a)(1)(B)(i) (stating that “no court shall have jurisdiction to review any
judgment regarding the granting of relief under section . . . 1229b . . . of this title”);
Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1140-41 and n.2 (9th Cir. 2001)
(recognizing the general jurisdiction-limiting effect of § 1252(a)(1)(B)(i) on
determinations by the Board made in conjunction with cancellation of removal
orders). Even were we to find jurisdiction over the Board’s § 1229b decision, we
would be constrained to find that the petitioner waived any substantive objections to
that ruling by failing to raise them in his appeal brief. See United States v. Simmons,
964 F.2d 763, 777 (8th Cir. 1992) (“Issues not raised on appeal are waived under
Rule 4 of the Federal Rules of Appellate Procedure . . .”).


       Finally, we briefly address the petitioner’s alleged constitutional claim. See
Vasquez-Velezmoro v. INS, 281 F.3d 693, 696 (8th Cir. 2002) (finding jurisdiction
to consider “substantial constitutional challenges” to the INA). The petitioner claims
that on April 19, 2002, without knowledge of the Board’s April 16th removal order,
he entered into a bona fide marriage with a U.S. citizen. He further claims that he has
filed a motion to reopen with the INS in order to prove the legitimacy of the marriage

                                           -3-
and argue for adjustment of status on that basis. The petitioner asserts that his
removal pending the administrative resolution of that motion would constitute a
denial of due process. The record, however, does not include a copy of the motion
to reopen, and, as of the date of oral argument in this case, the INS averred that it was
without knowledge or evidence of any such motion or attendant stay request being
filed. We further note that the petitioner has not since supplemented the appellate
record with such evidence. Accordingly, we need not decide whether the petitioner’s
removal moots the constitutional issue since the petitioner has not provided the court
with anything to support the foundational allegations underlying his due process
claim.


       For the foregoing reasons, we affirm the order of the Board of Immigration
Appeals finding the petitioner removable under 8 U.S.C. § 1227(a)(1)(B) and
ineligible for cancellation of removal under 8 U.S.C. § 1229b.


      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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