     Case: 08-60624     Document: 00511007773          Page: 1    Date Filed: 01/19/2010




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

                                                  FILED
                                                                          January 19, 2010

                                     No. 08-60624                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



M.A. RAQUIB,

                                                   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. A46 948 179


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        M.A. Raquib, a native and citizen of Bangladesh, petitions, pro se, for
review of an order of the Board of Immigration Appeals (“BIA”). The BIA
dismissed Raquib’s appeal of the Immigration Judge’s (“IJ”) order of removal
because it found that Raquib’s 2006 conviction for possession of cocaine base for




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                       No. 08-60624

sale in violation of California Health and Safety Code § 11351.5 1 constituted an
aggravated felony, and aliens convicted of aggravated felonies are ineligible for
cancellation of removal pursuant to 8 U.S.C. § 1229b(a)(3). For the following
reasons, we deny Raquib’s petition for review.
       Raquib was lawfully admitted as a permanent resident alien in 2000. In
2007, the Department of Homeland Security (“DHS”) began removal proceedings
on two grounds: Raquib’s 2006 conviction under California Health and Safety
Code § 11351.5 was an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii), and
the 2006 conviction was a controlled substance offense under 8 U.S.C.
§ 1227(a)(2)(B)(i). Raquib’s counsel filed a motion to withdraw after Raquib
stated that he wanted to end his representation. The IJ granted the motion.
       After hearings in which Raquib appeared pro se, the IJ found that Raquib
presented no evidence to dispute the 2006 conviction, the 2006 conviction was
an aggravated felony, Raquib’s other arguments were baseless, and held that
Raquib was not eligible for cancellation of removal under 8 U.S.C. § 1229b(a)(3).
The IJ also denied Raquib’s motion to change venue to Los Angeles, California.
The BIA affirmed the IJ’s ruling, finding that Raquib’s 2006 conviction qualified
as an aggravated felony. This petition followed.
       We are jurisdictionally barred from reviewing removal orders for aliens
who have committed an aggravated felony. Larin-Ulloa v. Gonzales, 462 F.3d
456, 460–61 (5th Cir. 2006) (citing § 8 U.S.C. § 1252(a)(2)(C)). However, we may
review “‘constitutional claims or questions of law raised upon a petition for
review filed with an appropriate court of appeals in accordance with this
section.’” Id. at 461 (quoting § 8 U.S.C. § 1252(a)(2)(C)). We review the BIA’s



       1
          California Health and Safety Code section 11351.5 states “[e]xcept as otherwise
provided in this division, every person who possesses for sale or purchases for purposes of sale
cocaine base . . . shall be punished by imprisonment in the state prison for a period of three,
four, or five years.”

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                                     No. 08-60624

legal conclusions de novo. Id. (citations omitted). We are also barred from
reviewing legal or constitutional claims which have not been administratively
exhausted before the IJ or BIA. See Omari v. Holder, 562 F.3d 314, 318 (5th Cir.
2009) (citing 8 U.S.C. § 1252(d)(1)).
         A “‘drug trafficking crime (as defined in section 924(c) of Title 18)’”
constitutes an aggravated felony. Smith v. Gonzales, 468 F.3d 272, 275 (5th Cir.
2006) (quoting 8 U.S.C. § 1101(a)(43)(B)). A “‘drug trafficking crime’ means any
felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.).”
18 U.S.C. § 924(c)(2). The IJ ordered removal because Raquib was convicted of
an aggravated felony, and the only relief which he sought—cancellation of
removal—is not available to aliens convicted of aggravated felonies. See 8 U.S.C.
§ 1229b(a)(3). Raquib argues that the 2006 conviction was not an aggravated
felony because it was not a felony under federal law. Because this is the first
time that Raquib makes this argument, Raquib failed to exhaust his
administrative remedies, and we do not have jurisdiction to consider this
question.
         Raquib also appears to argue that his counsel before the IJ was ineffective.
This claim fails because Raquib does not make a coherent argument as to how
his counsel’s performance was ineffective and how it prejudiced him. See De
Zavala v. Ashcroft, 385 F.3d 879, 884 (5th Cir. 2004) (finding that even if the
petitioner received ineffective assistance of counsel she did not suffer prejudice).
Raquib presented no evidence upon which we could find that the IJ violated his
constitutional rights. We find that his ineffective assistance of counsel claim
fails.
         Raquib’s remaining arguments are unavailing. Raquib argues at length
that a conviction in 2003 under the same California statute is invalid.2 However,

         2
        Raquib apparently believes that the BIA found that he was guilty of an aggravated
felony as a “recidivist drug offender,” a felony under 21 U.S.C. § 844(a), which would have

                                            3
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the 2003 conviction was not at issue in this proceeding.               DHS erroneously
charged removal based on the 2003 conviction, and the IJ overruled that charge
based on Raquib’s showing that the conviction had been vacated. 3                  The IJ
allowed DHS to file a Form I-261 adding charges based on Raquib’s 2006
conviction, and ordered removal based on those charges. Raquib’s attack on the
2003 conviction is irrelevant.
       Raquib challenges that the IJ’s removal order was invalid because it was
in absentia. However, this claim seems to be based solely on the fact that the IJ
wrote the order. Raquib does not dispute that he received the order, the record
shows it that was properly served by mail, and Raquib had appeared in the
proceeding several times before the IJ issued the order. Raquib also argues that
DHS’s initial Notice to Appear (“NTA”) was defective because it listed a
“Mohammed Abdul Raquib,” and his name is M.A. Raquib. Raquib does not
dispute that he received the NTA, nor does he dispute that the NTA describes
crimes for which he has been convicted.                Furthermore, the IJ allowed
amendment of the NTA to reflect his real name, and DHS’s Form I-261 shows
his real name. These arguments lack merit, and even if Raquib’s arguments had
merit, we are without jurisdiction to review them because they involve no legal
or constitutional issues. See Larin-Ulloa, 462 F.3d at 460–61.
       For the reasons stated above, we DENY Raquib’s petition for review.
       DENIED.




required that the BIA found both the 2003 and 2006 convictions valid. However, the BIA ruled
that the 2006 conviction alone was an aggravated felony and overruled all charges related to
the 2003 conviction.
       3
        DHS filed charges for removal in 2003 based on the 2003 conviction, but an IJ
dismissed those charges in 2004.

                                             4
