           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                           June 27, 2008

                                       No. 07-60177                   Charles R. Fulbruge III
                                                                              Clerk

ALBERTO CONTRERAS-BANDA

                                                  Petitioner
v.

MICHAEL B MUKASEY, U S ATTORNEY GENERAL

                                                  Respondent



                        Petition for Review of an Order of the
                           Board of Immigration Appeals


Before KING, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
       Petitioner Alberto Contreras-Banda appeals the final removal order of the
Board of Immigration Appeals (the “BIA”), upholding the decision of the
Immigration Judge (the “IJ”) ordering him removed to Mexico, denying his
requests for a waiver pursuant to former § 212(c) of the Immigration and
Nationality Act (“INA”), 66 Stat. 163 (codified as amended at 8 U.S.C.
§ 1182(c)),1 and denying his request for an adjustment of status under INA


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
       1
      Prior to the enactment of the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), 110 Stat. 1214, § 212(c) provided:
                                            No. 07-60177

§ 245(a), 8 U.S.C. § 1255(a). He argues that the Department of Homeland
Security (“DHS”) unlawfully charged him as a deportable alien rather than as
an inadmissible alien based on a prior drug offense, and that if lawfully charged
as an arriving alien inadmissible for a drug offense, he could be eligible for his
requested relief. Because Contreras-Banda failed to exhaust this argument
before the BIA, we DISMISS his petition for review.
              I. FACTUAL AND PROCEDURAL BACKGROUND
        Contreras-Banda is a native and citizen of Mexico. He became a lawful
permanent resident (“LPR”) of the United States in 1983, after marrying a
United States citizen (“USC”) that year. He was convicted in 1995 of a firearm
offense and pleaded guilty to a drug offense, unlawful possession of cocaine, on
or about January 8, 1997. On April 10, 2003, Contreras-Banda was issued a
Notice to Appear (“NTA”), charging him as an LPR who was admitted and
deportable under 8 U.S.C. §§ 1227(a)(2)(B)(i) and (a)(2)(C) based on his 1997
drug conviction and his 1995 firearm conviction.
        Contreras-Banda appeared before the IJ for the first time on August 19,
2003, represented by counsel. At that time, he requested and was granted “time



                Aliens lawfully admitted for permanent residence who
                temporarily proceed abroad voluntarily and not under an order of
                deportation, and who are returning to a lawful unrelinquished
                domicile of seven consecutive years, may be admitted in the
                discretion of the Attorney General without regard to the
                provisions of subsection (a) [grounds for inadmissibility, including
                controlled substance offenses] (other than paragraphs (3) and
                (9)(C)) . . . . The first sentence of this subsection shall not apply
                to an alien who has been convicted of one or more aggravated
                felonies and has served for such felony or felonies a term of
                imprisonment of at least 5 years.

AEDPA amended the last sentence of § 212(c) as follows: “This subsection shall not apply to
an alien who is deportable by reason of having committed any criminal offense covered in
section 241(a)(2)(A)(iii), (B), (C), or (D), [8 U.S.C. § 1227(a)(2)(A)(iii), (B), (C), or (D)] . . . .” On
April 1, 1997, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (the
“IIRIRA”), 110 Stat. 3009-546, effective April 1, 1997, repealed the § 212(c) waiver altogether.

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to prepare,” and a hearing was set for September 12, 2003, for Contreras-Banda
to appear and enter his plea. At the September 12 hearing, Contreras-Banda
appeared before the IJ and denied the allegations of the convictions as well as
removability.   Following two subsequent hearings and continuances, at a
hearing on November 21, 2003, the IJ granted Contreras-Banda a continuance
for him to file his application for relief pursuant to § 212(c), and a follow-up
hearing was set for December 2, 2003. After three additional continuances, on
April 27, 2004, the IJ set a merits hearing on Contreras-Banda’s § 212(c)
application for October 19, 2004. At the hearing on October 19, the IJ stated
that it preliminarily appeared as though Contreras-Banda qualified for the
§ 212(c) waiver for his 1997 drug conviction. The IJ also informed Contreras-
Banda that he would need to file for an adjustment of status pursuant to INA
§ 245, 8 U.S.C. § 1255, along with an I-130 visa petition for an alien relative
based on his marriage to a USC, and set a date of January 18, 2005, for
Contreras-Banda to return and show proof of filing. On January 18, the IJ
administratively closed Contreras-Banda’s case pending either approval or
denial of his visa application and stated that, at that point, either Contreras-
Banda or DHS could file a motion to reopen the case to proceed on the § 212(c)
application.
      DHS filed a motion to reopen the case on July 21, 2005. On February 8,
2006, during the hearing on the merits of his applications for § 212(c) relief and
adjustment of status, Contreras-Banda maintained that despite the AEDPA
amendment excluding aliens who are “deportable by reason of having
committed” an aggravated felony from eligibility for relief, he remained eligible
for § 212(c) relief under Matter of Gabryelsky, 20 I. & N. Dec. 750 (BIA 1993)
(permitting an alien to apply for § 212(c) relief and an adjustment of status
pursuant to § 245 simultaneously), and INS v. St. Cyr, 533 U.S. 289 (2001)
(preserving the possibility of § 212(c) relief for aliens whose convictions were

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obtained by plea agreements and who would have been eligible for § 212(c) relief
at the time of their pleas notwithstanding the provisions of AEDPA and the
IIRIRA that limited and ultimately repealed § 212(c)).
       Contreras-Banda argued, without offering evidence at the hearing, that
he was an arriving alien, explaining that he was apprehended at a port of entry
crossing a bridge between Mexico and the United States, was never formally
admitted, and was served with an NTA when he was detained at the border.2
In fact, during the hearing, Contreras-Banda asserted initially that he was
charged as an arriving alien. Thus, as an arriving alien, Contreras-Banda
continued, he should have been charged as inadmissible rather than as
deportable, and the AEDPA amendment barring aliens deportable for
aggravated felony convictions from eligibility for § 212(c) relief would not apply
to him.
       The IJ responded that Contreras-Banda was charged as having been
admitted to the United States as an LPR who was deportable based on his
firearm and drug convictions, and, as such, that the AEDPA amendment applied
to bar him from eligibility for relief under § 212(c). Contreras-Banda requested
the opportunity to file a brief on the issue of his eligibility for § 212(c) relief, but
the IJ denied his request.            The IJ then found that Contreras-Banda was
ineligible for § 212(c) relief, and consequently also ineligible for an adjustment
of status. That same day, the IJ issued an oral decision to that effect and an
order denying his applications for § 212(c) relief and an adjustment of status
under § 245 and ordering Contreras-Banda removed to Mexico.




       2
         Although it is not integral to the decision on jurisdictional grounds in this case, at oral
argument before this court, Contreras-Banda’s story about his return from Mexico changed;
in the new version, he was actually permitted to enter the United States, even though he was
not formally admitted or paroled in, and was served with an NTA approximately a week after
his return.

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      Contreras-Banda appealed the IJ’s decision to the BIA, filing a brief on
September 14, 2006. In his brief, Contreras-Banda again alleged, without
offering evidence, in his statement of facts that he was an arriving alien because
he was apprehended at a bridge between Mexico and the United States and was
immediately issued an NTA. However, Contreras-Banda did not rely on those
facts in the argument section of his brief. Rather, he argued that the IJ should
have considered him an applicant for admission because he applied for an
adjustment of status pursuant to § 245 and had not yet been adjudged
deportable, thereby preserving his eligibility for a § 212(c) waiver,
notwithstanding AEDPA. He further argued that, because he was an applicant
for admission, he did not need a waiver for his firearm conviction because that
conviction was not a ground for inadmissability. In a single paragraph on the
last page of his brief, Contreras-Banda expressly declined to pursue the
argument that he could only be lawfully charged as inadmissible because he was
an arriving alien under 8 U.S.C. §§ 1101 (a)(13)(A) and (C)(v). His brief stated:
            Because it is possible to dispose of the issues in this
            appeal without arguing that [Contreras-Banda] is an
            arriving alien pursuant to INA [§] 101(a)(13)(c) and 8
            C.F.R. § 1.1(q)[,] we do not advance this argument at
            present. However, we reserve discussion of this issue
            for further proceedings where necessary [ ] and
            expressly do not waive it.
(Pet. BIA Br. at 10.)
      The BIA rejected Contreras-Banda’s argument. In an order issued on
February 6, 2007, the BIA found that DHS charged Contreras-Banda as
removable, not as inadmissible, after his attempted reentry, and that neither the
IJ nor the BIA had jurisdiction over DHS’s decision to initiate particular charges
in a case, such as this, where the respondent was not paroled into the United
States. The BIA concluded that, because Contreras-Banda was charged as
admitted and deportable based on a controlled substance conviction, he was

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ineligible under AEDPA for a § 212(c) waiver and consequently ineligible for
adjustment of status. The BIA dismissed Contreras-Banda’s appeal, and he
timely filed the instant petition for review on March 2, 2007.
      In his brief to this court, Contreras-Banda abandons the argument that he
made to the BIA stating that he should be eligible for § 212(c) relief because he
should have been charged as inadmissible as an applicant for admission due to
his standing as an applicant for adjustment of status. Instead, he pursues the
argument that he is eligible for relief because he could only lawfully be charged
as inadmissible, as he was an arriving alien seeking admission under
§§ 1101(a)(13)(A) and (C)(v), an argument which he expressly reserved, but did
not advance, in his brief to the BIA.
                        II. STANDARD OF REVIEW
      On a petition for review of a BIA decision, we review the BIA’s decision
and the IJ’s decision to the extent that it influenced the BIA. Mikhael v. INS,
115 F.3d 299, 302 (5th Cir. 1997). Questions of law are reviewed de novo. Lopez-
Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001). Factual findings are
reviewed for substantial evidence, Mikhael, 115 F.3d at 302, which “requires
only that the BIA’s decision be supported by record evidence and be substantially
reasonable,” Omagah v. Ashcroft, 288 F.3d 254, 258 (5th Cir. 2002).
                               III. DISCUSSION
      The thrust of Contreras-Banda’s brief in support of his petition for review
and of the government’s response probes this court’s jurisdiction under 8 U.S.C.
§§ 1252(a)(2)(D) and (g) to consider the legality of the removal order based on
DHS’s charging him as admitted and deportable as an aggravated felon under
8 U.S.C. § 1227(a)(2)(iii) rather than as an arriving alien inadmissible under 8
U.S.C. § 1182(a)(2)(i)(II). However, under § 1252(d)(1), we “may review a final
order of removal only if—the alien has exhausted all administrative remedies
available to the alien as of right . . . .” Further, “[w]e have emphasized that: ‘An

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alien fails to exhaust his administrative remedies with respect to an issue when
the issue is not raised in the first instance before the BIA,’” with the exception
of constitutional claims. Falek v. Gonzales, 475 F.3d 285, 289, 291 (5th Cir.
2007) (quoting Wang v. Ashcroft, 260 F.3d 448 452–53 (5th Cir. 2001)). And,
although the government did not challenge our jurisdiction on this ground, as
a federal court of appeals with limited jurisdiction,“[w]e must raise the issue of
our appellate jurisdiction sua sponte, if necessary.” Said v. Gonzales, 488 F.3d
668, 670–71 (5th Cir. 2007).        Contreras-Banda raises no constitutional
arguments on appeal, and his statutory arguments are certainly subject to the
exhaustion requirement of § 1252(d)(1). Cf. Falek, 475 F.3d at 291.
      In Said, we expressly declined to entertain the petitioner’s argument that
the IJ was biased against the petitioner or engaged in other misconduct because
we lacked jurisdiction under § 1252(d)(1), as the petitioner failed to raise the
argument below. 488 F.3d at 671 n.3. In Falek, which is closely analogous to the
case before us now, the petitioner was an LPR who was charged with
inadmissibility under § 1182(a)(2)(A)(i)(I) as an alien seeking admission under
§ 1101(13) after taking a brief trip to Brazil with his employer. 475 F.3d at 287.
The petitioner in Falek argued before the IJ that § 1101(13)(C) had the
impermissible retroactive effect of classifying him on his return as an alien
“seeking admission” and exposing him to inadmissibility charges that he did not
face under the law as it was written at the time of his guilty plea. Id. at 287–88,
291–92. The IJ rejected his retroactivity argument. Id. at 291. However, before
the BIA, the petitioner decided not to reurge his retroactivity argument, instead
relying on the Supreme Court’s decision in St. Cyr, 533 U.S. 289, to establish his
eligibility for a § 212(c) waiver. Id. at 288. Consequently, when the petitioner
attempted to raise the retroactivity argument on appeal, because we found it to
be a statutory argument that the BIA was fully capable of adjudicating, we



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dismissed his petition for lack of jurisdiction under § 1252(d)(1) due to the
petitioner’s failure to exhaust it before the BIA. Id. at 291–92.
      Similarly, in this case, assuming without deciding that Contreras-Banda
sufficiently raised the issue by arguing to the IJ that he could only be lawfully
charged with inadmissibility under § 1182(a)(2)(A)(i)(II) as an arriving alien
seeking admission under §§ 1101(a)(13)(A) and (C)(v) without presenting
evidence that he traveled to Mexico as he claimed or that he was detained on the
bridge, once the IJ rejected that argument, Contreras-Banda decided not to
advance it before the BIA on appeal, expressly stating so in the above-quoted
paragraph. Consequently, we do not have jurisdiction to consider his petition for
review based on this unexhausted claim. See § 1252(d)(1). In so concluding, we
express no opinion on Contreras-Banda’s other jurisdictional argument that
§ 1252(g) would not operate to bar our review of his claim that he could only
lawfully be charged with inadmissibility as an arriving alien seeking admission
and, as such, may be eligible for relief under § 212(c) and the Supreme Court’s
decision in St. Cyr.
                              IV. CONCLUSION
      For the foregoing reasons, we DISMISS Contreras-Banda’s petition for
review for lack of jurisdiction.




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