                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


XAVIER COBBLAH,                       
              Petitioner-Appellant,
                 v.                              No. 01-7831
UNITED STATES OF AMERICA,
              Respondent-Appellee.
                                      
            Appeal from the United States District Court
       for the Eastern District of North Carolina, at Raleigh.
                W. Earl Britt, Senior District Judge.
                         (CA-01-620-BR)

                      Submitted: March 26, 2002

                       Decided: April 24, 2002

    Before WILKINS, NIEMEYER, and KING, Circuit Judges.



Affirmed in part and remanded in part by unpublished per curiam
opinion.


                             COUNSEL

Xavier Cobblah, Appellant Pro Se.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                     COBBLAH v. UNITED STATES
                              OPINION

PER CURIAM:

   Federal prisoner Xavier Cobblah, a native and citizen of Ghana,
appeals the district court’s denial of his motion to reconsider the dis-
missal of his petition under 28 U.S.C. § 2241 (1994) as frivolous.
Cobblah, who is subject to a 1998 order of removal based on his
guilty plea to an aggravated felony in 1995, takes issue with the dis-
trict court’s finding that he is ineligible for relief from removal under
8 U.S.C. § 1182(c) (1994) (repealed 1996). We have reviewed the
record and the district court’s opinion and find that Cobblah is indeed
ineligible for such relief because Cobblah has served more than five
years of his ten-year sentence. See 8 U.S.C. § 1182(c); INS v. St. Cyr,
121 S. Ct. 2271, 2293 (2001); Attwood v. Ashcroft, 260 F.3d 1, 2 &
n.1 (1st Cir. 2001) (noting that eligibility for relief under 8 U.S.C.
§ 1182(c) turns on time actually served by alien rather than sentence
received).

   Cobblah next maintains that he was denied his right of appeal from
the Immigration Judge to the Board of Immigration Appeals to pursue
relief under 8 U.S.C. § 1182(c), (h) in violation of his right to due
process under the Fifth Amendment and in violation of his right to
equal protection. Because Cobblah failed to raise this issue before the
district court, we find that it has been waived. United States v. One
1971 Mercedes Benz, 542 F.2d 912, 915 (4th Cir. 1976).

   Finally, Cobblah asserts that the district court failed to address his
claim for relief under 8 U.S.C. § 1182(h). Our review of the record
discloses that the claim was indeed raised and that the district court
did not address it. As this matter was dismissed on frivolity review
without any response from the Government or other supplementation
of the record, we find the record is inadequate for us to make a deter-
mination on the claim at this juncture. Accordingly, we remand this
issue to the district court for further proceedings. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.

                       AFFIRMED IN PART, REMANDED IN PART
