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

                                                 FILED
                                                                             April 7, 2009
                                     No. 08-60384
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

WAHEED AYANDA AMOLEGBE

                                                   Petitioner

v.

ERIC H HOLDER, JR., U S ATTORNEY GENERAL

                                                   Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                 BIA No. A91 832 760


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Waheed Ayanda Amolegbe, a native and citizen of Nigeria, petitions this
court for review of the Board of Immigration Appeal’s (BIA) order affirming the
immigration judge’s (IJ) order that 1) Amolegbe be deported pursuant to former
8 U.S.C. §1251(a)(2)(A)(iii) and (B)(i) (reenacted in 1994 as 8 U.S.C.
§ 1227(a)(2)(A)(iii) and (B)(i)), and (2) Amolegbe was not entitled to a waiver
pursuant to 8 U.S.C. § 1182(c). This court generally reviews only the BIA’s
decision, not that of the IJ, except to the extent that the IJ’s decision influences

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                       No. 08-60384

the BIA. See Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997). In the instant
case, the BIA relied in part on the IJ’s analysis in determining whether
Amolegbe was entitled to relief. Thus, consideration of the IJ’s decision is
appropriate. See Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 348 (5th Cir. 2002).
While questions of law are reviewed de novo, this court “accord[s] deference to
the BIA’s interpretation of immigration statutes unless the record reveals
compelling evidence that the BIA's interpretation is incorrect.” Mikhael v. INS,
115 F.3d 299, 302 (5th Cir. 1997).
       Preliminarily, the Government argues pursuant to § 1252(a)(2)(C) that
this court lacks jurisdiction over Amolegbe’s appeal of the order of removal
because Amolegbe’s removal results from his having committed a controlled
substance offense covered in 8 U.S.C. § 1227(a)(2)(B). However, § 1252(a)(2)(D)
provides that § 1252(a)(2)(C) does not deprive this court of jurisdiction over
constitutional claims or questions of law. Because Amolegbe argues that his
delivery of cocaine conviction does not constitute a valid basis for his deportation
as a matter of law, this court does not lack jurisdiction over his appeal. See
§ 1252(a)(2)(D).
       Amolegbe argues that he is not deportable because his cocaine delivery
conviction under T EX. H EALTH & S AFETY C ODE A NN. § 481.112(b) does not
constitute a “drug trafficking offense,” citing for support, inter alia, United
States v. Gonzales, 484 F.3d 712, 714-715 (5th Cir.), cert. denied, 127 S.Ct. 3031
(2007). However, while Amolegbe’s argument may call into question whether his
cocaine delivery conviction constitutes an aggravated felony 1 for purposes of
former § 1251(a)(2)(A)(iii), there is no doubt that his cocaine conviction
constitutes a state crime “relating to a controlled substance” such that his
deportation pursuant to former § 1251(a)(2)(B)(i) is appropriate. See Peters v.


       1
          An aggravated felony is defined, in relevant part, to mean “illicit trafficking in a
controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime
(as defined in section 924(c) of Title 18).” 8 U.S.C. § 1101(a)(43)(B).

                                               2
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Ashcroft, 383 F.3d 302, 306-07 (5th Cir. 2004) (holding that an expansive
interpretation of the phrase “relating to” within the context of § 1227(a)(2)(B)(i)
is appropriate).
      With regard to the denial of his § 1182(c) waiver request, Amolegbe does
not argue that he made the necessary showing to obtain the waiver, but only
that he was not afforded due process because the IJ ruled without having first
held an eligibility hearing. However, Amolegbe did not raise a due process
argument in his brief to the BIA. Judicial review is available only where the
applicant has exhausted all administrative remedies of right.             8 U.S.C.
§ 1252(d)(1). “An 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-
-either on direct appeal or in a motion to reopen.” Wang v. Ashcroft, 260 F.3d
448, 452-53 (5th Cir. 2001). Because the exhaustion requirement is statutorily
mandated, an alien’s failure to exhaust an issue before the BIA is a jurisdictional
bar to this court’s consideration of the issue. Id. at 452.
      Even assuming this court has jurisdiction to consider Amolegbe’s due
process argument, it lacks merit. This court has held in both civil and criminal
contexts that eligibility for § 1182(c) relief is not a liberty or property interest
that warrants due process protection. Nguyen v. District Director, Bureau of
Immigration and Customs Enforcement, 400 F.3d 255, 259 (5th Cir. 2005);
United States v. Lopez-Ortiz, 313 F.3d 225, 231 (5th Cir. 2002). In any event,
IJ’s order addresses arguments raised by Amolegbe regarding his alleged
§ 1182(c) eligibility.
      AFFIRMED.




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