                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                     March 21, 2007
                             FO R TH E TENTH CIRCUIT               Elisabeth A. Shumaker
                                                                       Clerk of Court



    SAM UEL SCH ULTZ,

               Petitioner,

    v.                                                  No. 06-9546
                                                     (No. A38-602-964)
    ALBERTO R. GONZA LES,                           (Petition for Review)
    Attorney General,

               Respondent.



                             OR D ER AND JUDGM ENT *


Before PO RFILIO, B AL DOC K , and EBEL, Circuit Judges.


         Samuel Schultz seeks review of a Board of Immigration Appeals (BIA)

decision that ordered him removed to India under 8 U.S.C. § 1227(a)(2)(A )(iii)

for being an alien convicted of an aggravated felony theft offense as defined by

8 U.S.C. § 1101(a)(43)(G). W e have jurisdiction under 8 U.S.C. § 1252(a)(2)(D),

and w e deny the petition for review.



*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                  I. Background

      M r. Schultz is a native and citizen of India. He was born there in 1981, but

became a lawful permanent resident of the United States in 1985 when he was

adopted by an American citizen. He never applied for U.S. citizenship. In 2000,

M r. Schultz pleaded guilty to attempting to receive or transfer a stolen vehicle, an

offense classified as a felony under Utah law. Then in 2001, M r. Schultz pleaded

guilty to receiving a stolen motor vehicle, also a felony under U tah law.

Following these convictions, M r. Schultz received a Notice to Appear before an

Immigration Judge (IJ) to answer to charges of removal as an alien convicted of

an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii). At his removal

hearing, M r. Schultz sought cancellation of removal, asylum, restriction on

removal, and protection under the Convention Against Torture (CAT). The IJ

denied all forms of relief and ordered M r. Schultz removed to India. M r. Schultz

appealed, and the BIA reversed.

      The BIA found that the evidence relied upon by the government to prove

M r. Schultz’s convictions was not properly certified as required by 8 C.F.R.

§ 1003.41. Consequently, the BIA remanded the case to the IJ who, after the

government submitted new records of M r. Schultz’s convictions, again ordered

him removed. M r. Schultz appealed to the BIA a second time, arguing once again

that the newly admitted conviction records were also improperly certified. The

BIA rejected this argument, however, and affirmed the IJ’s removal order.

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      M r. Schultz subsequently petitioned this court for review. In his petition,

he contends that: (1) the government failed to establish his removability because

the evidence of his convictions was not properly certified; (2) the crime of

receiving or transferring a stolen motor vehicle does not qualify as an aggravated

felony theft offense under § 1101(a)(43)(G ); and (3) the IJ erred in finding him

ineligible for asylum and cancellation of removal.

                                   II. Discussion

      Our threshold inquiry is w hether w e have jurisdiction to consider this

petition. See Sabido Valdivia v. Gonzales, 423 F.3d 1144, 1147 (10th Cir. 2005)

(“W e must first address a threshold jurisdictional question before turning to the

merits.”). The REAL ID Act added 8 U.S.C. § 1252(a)(2)(D ) to provide us w ith

jurisdiction over constitutional claims or questions of law raised in a petition to

review a final order of removal. Diallo v. Gonzales, 447 F.3d 1274, 1281

(10th Cir. 2006). Here, M r. Schultz challenges his classification as an aggravated

felon by contending the convictions on which his status was based were not

properly certified under 8 U.S.C. §§ 1229a(c)(3)(B) and (C), or 8 C.F.R. §§ 287.6

and 1003.41. This presents the legal question of whether M r. Schultz was

removable under § 1227(a)(2)(A )(iii), which we now have jurisdiction to

consider. Vargas v. Dep’t of Homeland Sec., 451 F.3d 1105, 1107 (10th Cir.

2006). W e therefore turn to the merits of the petition, reminded that we review




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the BIA ’s legal determinations de novo, Ferry v. Gonzales, 457 F.3d 1117, 1126

(10th Cir. 2006).

                     A. Certification of Conviction Records

      M r. Schultz first claims that the conviction records upon which the IJ based

its removal order were not properly certified. These records were admitted as

Exhibits 6 and 7. Exhibit 6 is an eleven-page copy of a conviction record

indicating that M r. Schultz pleaded guilty to receiving or transferring a stolen

vehicle. Admin. R. at 263-73. Of the eleven pages, only pages one, two, and

eleven bear a seal from the U tah state court. The other exhibit, Exhibit 7, is a

two-page copy of M r. Schultz’s conviction record indicating that he pleaded

guilty to attempting to receive or transfer a stolen vehicle. Id. at 261-62. Both

pages of that document are affixed with a seal from the Utah court. Citing

8 U.S.C. §§ 1229a(c)(3)(B) and (C), and 8 C.F.R. §§ 287.6 and 1003.41,

M r. Schultz contends that to establish his removability for having been convicted

of an aggravated felony, the government must submit “either original documents

or records or certified copies of official documents or records.” 1 Aplt. Br. at 12.

Asserting that the government failed to provide such documents, M r. Schultz

concludes that the evidence against him was insufficient to sustain the agency’s

removal order.



1
     Because there is no indication that the records w ere submitted by electronic
means, 8 U.S.C. § 1229a(c)(3)(C) is inapplicable.

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      Initially, we note that contrary to M r. Schultz’s representations, he did not

challenge the admissibility of Exhibit 7 before the BIA. Indeed, as the BIA stated

in its decision, M r. Schultz “ma[de] no argument as to the authenticity or proper

certification of Exhibit 7.” Admin. R. at 3. Because he failed to raise this issue

before the BIA , it is abandoned and we cannot consider it. See Akinwunmi v. INS,

194 F.3d 1340, 1341 (10th Cir. 1999) (per curiam) (“The failure to raise an issue

on appeal to the Board constitutes failure to exhaust administrative remedies with

respect to that question and deprives the Court of Appeals of jurisdiction to hear

the matter.” (quotation omitted)). M oreover, as the BIA recognized,

M r. Schultz’s status as an aggravated felon was demonstrated by Exhibit 7, which

was sufficient to establish his removability.

      Nonetheless, turning to Exhibit 6, we see that the first page is a copy of

M r. Schultz’s actual judgment and conviction. This record bears both a seal and

signed attestation that satisfy both regulations. See 8 C.F.R. § 287.6(a) (“an

official record . . . shall be evidenced . . . by a copy attested by the official having

legal custody of the record”); id., § 1003.41(b) (permitting the admission of

conviction records that comply with the requirements of § 287.6(a)). This page

also satisfies 8 U.S.C. § 1229a(c)(3)(B)(i), which provides that a certified copy of

an official record of judgment and conviction constitutes proof of a criminal

conviction. To the extent M r. Schultz suggests that each page of Exhibit 6 must

be certified, we note that the first, second, and last pages of the exhibit clearly

                                           -5-
bear a state district court seal. See Admin. R. at 263-64, 273. M oreover, the last

page also bears an inclusive attestation, signed and dated by the clerk of court,

certifying “that the foregoing is a true and correct copy of an original document.”

Id. at 273. Given these and the other authenticating marks throughout Exhibit 6,

we are satisfied that M r. Schultz’s conviction record was properly certified under

the requirements of 8 U.S.C. § 1229a(c)(3)(B), as well as 8 C.F.R. §§ 287.6 and

1003.41. Accordingly, we conclude that the agency’s reliance on both Exhibits 6

and 7 was proper.

                              B. Aggravated Felony

      M r. Schultz next argues that the crime of receiving or transferring a stolen

motor vehicle does not qualify as an aggravated felony theft offense under

§ 1101(a)(43)(G). Our jurisdiction to consider this argument is foreclosed,

however, because M r. Schultz failed to raise the issue before the BIA and thereby

failed to exhaust his administrative remedies. See Akinwunmi, 194 F.3d at 1341.

In any event, our precedent contradicts M r. Schultz’s position. In United States v.

Vasquez-Flores, 265 F.3d 1122, 1124-25 (10th Cir. 2001), we expressly held that

the crime of receiving or transferring a stolen motor vehicle constitutes an

aggravated felony theft offense because, under Utah law, it entails a knowing

exercise of control over another’s property without consent. Although

Vasquez-Flores is a criminal case, its classification of this crime as an aggravated

felony was based on the phrase “theft offense” under § 1101(a)(43)(G), and the

                                         -6-
elements of the offense as defined by Utah law. See id. (examining and adopting

the reasoning of Hernandez-M ancilla v. INS, 246 F.3d 1002 (7th Cir. 2001)).

Hence, M r. Schultz’s contention is w ithout merit.

            C. Ineligibility for Asylum and C ancellation of Removal

      Lastly, M r. Schultz contends the IJ erred in finding him ineligible for

asylum and cancellation of removal. M aintaining that his convictions are not

qualifying aggravated felonies, M r. Schultz argues that his claims for asylum and

cancellation of removal ought to be allowed to proceed. But as we have already

held, the crime of receiving or transferring a stolen motor vehicle is an

aggravated felony theft offense under § 1101(a)(43)(G). W e therefore conclude

the IJ correctly determined that M r. Schultz was not eligible for either form of

relief. See 8 U.S.C. §§ 1229b(a)(3) and 1158(b)(2).

                                  III. Conclusion

      The petition for review is DENIED.


                                                      Entered for the Court



                                                      John C. Porfilio
                                                      Circuit Judge




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