09-1312-ag
Baker v. Holder


                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUM M ARY O RDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.


       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 24th day
of February, two thousand ten.

Present:
            ROBERT A. KATZMANN,
            DEBRA ANN LIVINGSTON,
            GERARD E. LYNCH,
                        Circuit Judges.
________________________________________________

ONIEL OINAR BAKER,

                  Petitioner,

                         v.                                    No. 09-1312-ag

ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL,

                  Respondent.

________________________________________________

For Petitioner:                   LEON HAZANY , Leon Hazany & Associates, Los Angeles, CA

For Respondent:                   JAMES E. GRIMES, Senior Litigation Counsel (Tony West, Assistant
                                  Attorney General, Linda S. Wernery, Assistant Director, of
                                  counsel), Office of Immigration Litigation, Civil Division, United
                                  States Department of Justice, Washington, DC
       Petition for Review of a Decision of the Bureau of Immigration Appeals.

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the petition for review is DENIED.

       Petitioner Oniel Oinar Baker appeals from the decision of the Bureau of Immigration

Appeals (“BIA”) dismissing his appeal of an Immigration Judge’s order of removal. We assume

the parties’ familiarity with the facts and procedural history of the case.

       Petitioner argues that the Immigration Judge and the BIA erred by not granting him a

waiver of removal under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. §

1182(h). The government responds that Baker may not raise this argument because he failed to

administratively exhaust it. The government is correct. “To preserve an issue for judicial

review, the petitioner must first raise it with specificity before the BIA.” Steevenez v. Gonzales,

476 F.3d 114, 117 (2d Cir. 2007); see also Kahn v. Gonzales, 495 F.3d 31, 36 (2d Cir. 2007)

(“[W]e are precluded from considering this challenge because [petitioner] failed to raise this

issue before the BIA.”). Here, both Baker’s Notice of Appeal to the BIA and his brief before the

BIA are devoid of any reference to his eligibility for a section 212(h) waiver. Baker therefore

may not raise this issue before this Court.

       Moreover, even if Baker had administratively exhausted his argument that he is eligible

for section 212(h) relief, his argument would fail given the statutory requirements that bind us.

“An alien applying for relief or protection from removal has the burden of proof to establish that

the alien . . . satisfies the applicable eligibility requirements.” 8 U.S.C. § 1229a(c)(4)(A).

Despite being given two years to produce such evidence, Baker did not produce any evidence that

his conviction was for possession of less than thirty grams of marijuana such that he was eligible


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for the waiver. Therefore, we have no choice but to conclude that the Immigration Judge

properly found Baker ineligible for a section 212(h) waiver.

       Accordingly, for the foregoing reasons, Baker’s petition for review of the BIA’s decision

is hereby DENIED.


                                             FOR THE COURT:
                                             CATHERINE O’HAGAN WOLFE, CLERK




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