                                                                   [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                              FOR THE ELEVENTH CIRCUIT
                               ________________________           FILED
                                                         U.S. COURT OF APPEALS
                                      No. 10-10872         ELEVENTH CIRCUIT
                                  Non-Argument Calendar      OCTOBER 4, 2010
                                ________________________        JOHN LEY
                                                                 CLERK
                                  Agency No. A023-212-982


JORGE HERNANDEZ,

lllllllllllllllllllll                                                      Petitioner,

                                            versus

U.S. ATTORNEY GENERAL,

lllllllllllllllllll                                                     llRespondent.

                                ________________________

                            Petition for Review of a Decision of the
                                 Board of Immigration Appeals
                                 ________________________

                                      (October 4, 2010)

Before TJOFLAT, WILSON and FAY, Circuit Judges.

PER CURIAM:
       Jorge Hernandez, a Cuban citizen and permanent resident of the United

States, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision

affirming the Immigration Judge’s (“IJ”) final order of removal and denying his

application for a waiver of inadmissibility under the Immigration and Nationality

Act (“INA”), INA § 212(c), 8 U.S.C. § 1182(c). He argues that the BIA erred in

finding that his convictions for sexual abuse of a minor rendered him ineligible for

§ 212(c) relief. He points out that the case on which the BIA relied, Matter of

Blake, 23 I & N Dec. 722 (BIA 2005), was overturned by the Second Circuit in

Blake v. Carbone, 489 F.3d 88 (2d Cir. 2007). He asserts that Matter of Blake was

wrongly decided and that he is, in fact, eligible for a waiver of inadmissibility

under § 212(c). Hernandez also contends that Matter of Blake and the BIA’s

statutory counterpart test cannot be retroactively applied to pre-2004 convictions.

For the reasons set forth below, we dismiss the petition for review in part and deny

it in part.

                                          I.

       In 2008, the Department of Homeland Security issued a Notice to Appear to

Hernandez, charging that he was removable from the United States because he had

been convicted of aggravated felonies. Specifically, the notice alleged that

Hernandez had been convicted of two counts of custodial familial sexual battery,

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in violation of Fla.Stat. § 794.04. Hernandez conceded that he was removable as

charged, but he sought a waiver of inadmissibility pursuant to § 212(c).

      The IJ denied Hernandez’s application for a waiver of inadmissibility. The

IJ noted that, in Matter of Blake, the BIA held that an individual convicted of

sexually abusing a minor is ineligible for § 212(c) relief because that offense does

not have a statutory counterpart in any of the grounds of inadmissibility under

INA § 212(a), 8 U.S.C. § 1182(a). Hernandez appealed to the BIA. In his appeal

brief, he argued that the IJ erred by applying Matter of Blake because that case

was overruled in Carbone. The BIA affirmed the IJ’s decision.

                                         II.

      Before addressing the merits of Hernandez’s arguments, we must consider

whether we have jurisdiction over his petition for review. We review our own

subject-matter jurisdiction de novo. Amaya-Artunduaga v. U.S. Att'y Gen., 463

F.3d 1247, 1250 (11th Cir. 2006). Generally, we may not review a final order of

removal where the petitioner was found to be removable based on a conviction for

an aggravated felony. INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C).

Nevertheless, we retain jurisdiction to review constitutional issues and questions

of law. INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D). By statute, the petitioner

must administratively exhaust his arguments by raising them before the BIA.

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Amaya-Artunduaga, 463 F.3d at 1250. We lack jurisdiction to consider

unexhausted arguments. Id.

       In this case, Hernandez raises two issues before use. First, he argues that

the BIA’s decision in Matter of Blake is contrary to precedent and is inconsistent

with the INA and the agency’s own regulations. Second, he contends that

application of Matter of Blake to his case would result in an impermissible

retroactive effect. Both of these issues present questions of law.

       However, in his appeal brief before the BIA, Hernandez argued only that

Matter of Blake was wrongly decided and was no longer binding in light of the

Second Circuit’s decision in Carbone. He did not assert that the IJ erred by

retroactively applying Matter of Blake to his case. Because Hernandez failed to

exhaust his administrative remedies with respect to the retroactivity question, we

lack jurisdiction to consider it.1 Accordingly, we will dismiss Hernandez’s

petition with respect to that issue. Since Hernandez did exhaust his argument that

Matter of Blake was wrongly decided, we will consider the merits of that issue.

                                               II.



       1
         Even if Hernandez had exhausted his administrative remedies, his retroactivity argument
is meritless. See Valere v. Gonzales, 473 F.3d 757, 761-62 (7th Cir. 2007) (holding that Matter
of Blake can be applied retroactively); Vue v. Gonzales, 496 F.3d 858, 862-63 (8th Cir. 2007)
(same).

                                               4
      “We review the BIA’s legal determinations de novo.” De la Rosa v. U.S.

Att’y Gen., 579 F.3d 1327, 1335 (11th Cir. 2009). Under the prior panel precedent

rule, a prior decision of a panel of this Court is binding on all subsequent panels

unless and until the panel’s decision is overturned by the Supreme Court or by this

Court sitting en banc. Smith v. GTE Corp., 236 F.3d 1292, 1300 n.8 (11th Cir.

2001).

      In 2004, the Attorney General promulgated 8 C.F.R. § 1212.3(f)(5), which

provides that an application for cancellation of removal must be denied if the alien

is deportable or removable based on an offense that does not have a “statutory

counterpart” in the grounds of inadmissibility codified in INA § 212(a). In Matter

of Blake, the BIA determined that an alien convicted of sexual abuse of a minor

was ineligible for § 212(c) relief because his offense did not have a statutory

counterpart in any of the grounds of inadmissibility listed in § 212(a). Matter of

Blake, 23 I & N at 727-29. The BIA explained that a ground of inadmissibility is a

statutory counterpart to an aggravated felony only if it involves “essentially the

same category of offenses” as the felony charge. Id. at 729. The inquiry “turns

on whether Congress has employed similar language to describe substantially

equivalent categories of offenses.” Id. at 728.

      In De la Rosa, we adopted the BIA’s categorical approach to the statutory

                                          5
counterpart test. De la Rosa, 579 F.3d at 1337. We declined to accept the

alternative, offense-based approach employed by the Second Circuit in Carbone.

Id. We deferred to the BIA’s conclusion in Matter of Blake that sexual abuse of a

minor does not have a statutory counterpart in INA § 212(a). Id. at 1340.

      Hernandez’s argument that Matter of Blake was wrongly decided is

foreclosed by our decision in De la Rosa, which affirmed Matter of Blake and

adopted its categorical approach to the statutory counterpart test. Although the

Second Circuit rejected the BIA’s approach in Carbone, the Second Circuit’s

opinion did not affect the validity of Matter of Blake in this Circuit. We are bound

by our decision in De la Rosa unless and until that case is overruled by the

Supreme Court or by this Court sitting en banc. See Smith, 236 F.3d at 1300 n.8.

Under De la Rosa and Matter of Blake, Hernandez’s aggravated felony conviction

for sexual abuse of a minor rendered him ineligible for § 212(c) relief. See De la

Rosa, 579 F.3d at 1340; Matter of Blake, 23 I & N. Dec. at 727-29. Therefore, the

BIA properly denied Hernandez’s application for a waiver of inadmissibility.

      Accordingly, we deny the petition for review in part and dismiss it in part.

      PETITION DENIED IN PART, DISMISSED IN PART.




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