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                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-10546
                        Non-Argument Calendar
                      ________________________

                       Agency No. A060-126-661



MIKHAIL ABAM WATSON,

                                                                      Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                    Respondent.

                      ________________________

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

                             (March 8, 2019)

Before MARCUS, ROSENBAUM and HULL, Circuit Judges.

PER CURIAM:
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      Mikhail Watson, an alien previously convicted of drug and firearm offenses,

seeks review of the Board of Immigration Appeals’ (“BIA”) final order of removal

affirming the Immigration Judge’s denial of Watson’s application for asylum and

withholding of removal under the Immigration and Nationality Act (“INA”) and

for protection under the United Nations Convention Against Torture (“CAT”).

After review, we dismiss Watson’s petition for review for lack of jurisdiction.

                           I. BACKGROUND FACTS

      Watson is a native and citizen of Jamaica who was living in the United

States as a lawful permanent resident. In 2015, Watson was convicted in Florida

state court of carrying a concealed firearm and of conspiring to traffic, and

delivering, methylenedioxymethamphetamine (“MDMA”), for which he received

two concurrent 18-month prison sentences.

      In his removal proceedings, Watson was represented by counsel and

conceded his removability under (1) INA § 237(a)(2)(B)(i), 8 U.S.C.

§ 1227(a)(2)(B)(i), for having been convicted of an offense relating to a controlled

substance after admission (his Florida MDMA convictions); and (2) INA

§ 237(a)(2)(C), 8 U.S.C. § 1227(a)(2)(C), for having been convicted of a firearms

offense after admission (his Florida firearm conviction). Watson also conceded

that his Florida convictions were aggravated felonies that were also “particularly

serious crimes,” rendering him ineligible for asylum or withholding of removal


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under INA § 208(b)(2)(A)(ii), (B)(i), 8 U.S.C. § 1158(b)(2)(A)(ii), (B)(i), and

INA§ 241(b)(3)(B)(ii), 8 U.S.C. § 1231(b)(3)(b)(ii), and that, as such, he was

seeking only CAT relief.

      With respect to his CAT claim, Watson maintained that he is bisexual and

that if he were returned to Jamaica, he would be tortured or killed because of his

sexual orientation. Watson submitted country conditions evidence that Jamaica

criminalizes homosexual sex and that the Jamaican LGBTQ community faces

homophobia, discrimination and violence. At his hearing, Watson presented

testimony from himself, his parents, and the mother of his two U.S.-born children.

Watson testified that while living in Jamaica, he was forced by an angry mob to

flee his hometown and live with his grandmother after neighbors learned he was in

a romantic relationship with another man named Kemar and that Kemar was killed

by these neighbors shortly thereafter because of his sexual orientation.

      In their rulings, both the Immigration Judge (“IJ”) and the BIA noted

Watson’s concessions and confirmed that Watson sought only CAT relief. The IJ

determined, and the BIA agreed, that: (1) Watson was not credible; and (2) even if

Watson was credible, he had not shown that it was more likely than not that he

would be tortured in Jamaica because he is bisexual.




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                                   II. DISCUSSION

       Watson’s pro se petition for review argues that he presented sufficient

evidence to meet his burden of proof for CAT relief. Watson also contends—for

the first time—that the IJ violated his due process rights by erroneously concluding

that his Florida convictions were categorically aggravated felonies under the INA.

The government responds, and we agree, that we lack jurisdiction to review either

argument. 1

       INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C), commonly known as the

“criminal alien bar,” deprives us of jurisdiction to review Watson’s first argument.

Under the criminal alien bar, this Court lacks jurisdiction to review any final

removal order against an alien who, like Watson, “is removable by reason of

having committed” a controlled substance offense covered in 8 U.S.C.

§ 1227(a)(2)(B) or a firearm offense covered in § 1227(a)(2)(C). INA

§ 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C) (cross-referencing INA § 237(a)(2)(B),

(C), 8 U.S.C. § 1227(a)(2)(B), (C)). Notwithstanding this jurisdictional bar, we

retain jurisdiction to review colorable constitutional claims and questions of law

raised in the petition for review. INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D);

Arias v. U.S. Att’y Gen., 482 F.3d 1281, 1283-84 & n.2 (11th Cir. 2007).



       1
        We review de novo our own subject matter jurisdiction. Gonzalez-Oropeza v. U.S.
Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003).
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      When a criminal alien like Watson “petitions for review of a removal order

denying his CAT claim, we may not review the administrative fact findings of the

IJ or the BIA as to the sufficiency of the alien’s evidence and the likelihood that

the alien will be tortured if returned to the country in question.” Singh v. U.S.

Att’y Gen., 561 F.3d 1275, 1280 (11th Cir. 2009); see also Malu v. U.S. Att’y

Gen., 764 F.3d 1282, 1289-90 (11th Cir. 2014). We retain jurisdiction, however,

over whether a set of undisputed facts amounts to torture, which is a legal question.

Singh, 561 F.3d at 1280.

      Here, Watson’s petition challenges only the IJ’s fact findings. An IJ’s

credibility determination is a fact finding. See Ruiz v. U.S. Att’y Gen., 440 F.3d

1247, 1254-55 (11th Cir. 2006) (explaining that factual determinations such as

credibility findings are reviewed under the substantial evidence test). Thus, to the

extent Watson challenges the IJ’s adverse credibility finding, we lack jurisdiction

to review that claim.

      Watson also argues that the testimony he presented at his hearing—from

himself, his parents, and the mother of his two children—along with the country

conditions evidence was sufficient to show that it was more likely than not that he

would be tortured or killed in Jamaica because of his sexual orientation. We also

do not have jurisdiction to review this claim as to the sufficiency of the evidence.




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      We also lack jurisdiction to review Watson’s second argument, but for a

different reason. Watson argues that the IJ erred in concluding that his prior

Florida convictions were categorically aggravated felonies, which amounted to a

violation of Watson’s due process rights. This issue raises both a legal question

and a constitutional claim that, if colorable, we would ordinarily retain jurisdiction

to review despite the criminal alien bar. In Watson’s case, however, we lack

jurisdiction to review Watson’s second argument because he failed to

administratively exhaust it before the BIA.

      Under INA § 242(d)(1), 8 U.S.C. § 1252(d)(1), we lack jurisdiction to

review a claim if the petitioner has failed to exhaust it administratively by raising it

in his notice of appeal or appeal brief to the BIA. Amaya-Artunduaga v. U.S.

Att’y Gen., 463 F.3d 1247, 1250-51 (11th Cir. 2006) (holding that this Court

lacked jurisdiction to consider an alien’s due process claim raised for the first time

in his petition for review). This jurisdictional requirement extends to due process

claims that are within the BIA’s purview to provide a remedy. Id. at 1251; Sundar

v. INS, 328 F.3d 1320, 1325 (11th Cir. 2003). To properly exhaust a claim before

the BIA, the petitioner must do more than merely identify an issue to that body: a

petitioner has not exhausted a claim unless he “both raised the core issue before the

BIA . . . and also set forth any discrete arguments he relied on in support of his

claim.” Jeune v. U.S. Att’y Gen., 810 F.3d 792, 800 (11th Cir. 2016).


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      Watson’s counseled notice of appeal and brief filed with the BIA argued

only that the IJ erred in concluding he had not met his burden of showing he was

entitled to CAT protection. More importantly, Watson did not raise any due

process issues or challenge the IJ’s determination that his Florida convictions were

aggravated felonies and particularly serious crimes. In fact, consistent with his

statements before the IJ, Watson again conceded to the BIA that his convictions

qualified as such. Watson also noted that the only form of relief he sought was

CAT protection. Accordingly, we lack jurisdiction to review this unexhausted

claim as well.

      PETITION DISMISSED.




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