                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                               JUNE 25, 2007
                            No. 07-10204                     THOMAS K. KAHN
                        Non-Argument Calendar                    CLERK
                      ________________________

                          BIA No. A37-749-566

HUGH ANTHONY HAMILTON,


                                                      Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                      Respondent.


                      ________________________

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

                               (June 25, 2007)

Before BIRCH, CARNES and BARKETT, Circuit Judges.

PER CURIAM:
       Hugh Anthony Hamilton appeals the BIA’s denial of his motion for

reconsideration of its earlier dismissal of his appeal of the IJ’s refusal to grant him

discretionary relief under former INA § 212(c), 8 U.S.C. § 1182(c) (1994).1

Hamilton argues that the BIA abused its discretion in denying reconsideration

because the IJ violated his due process rights in conducting an allegedly hostile,

biased hearing that was fundamentally unfair.

       The government claims that we lack jurisdiction to review the merits of the

BIA’s final order of removal under 8 U.S.C. § 1252(a)(2)(C), because Hamilton is

an alien and is removable for having committed an aggravated felony—possession

with the intent to distribute cocaine. Further, the government argues that Hamilton

has failed to present (1) a cognizable constitutional claim or (2) a statutory

question regarding the denial of his § 212(c) application and therefore does not

qualify for the § 1252(a)(2)(D) exception to the jurisdictional bar, which allows us




       1
          That section provided that “[a]liens lawfully admitted for permanent reside[nce] . . .
who are returning to a lawful unrelinquished domicile of seven consecutive years, may be
admitted [to the United States] in the discretion of the Attorney General . . . . The first sentence
of this subsection shall not apply to an alien who has been convicted of one or more aggravated
felonies and has served for such felony or felonies a term of imprisonment of at least 5 years.”
INS § 212(c); 8 U.S.C. § 1182(c) (1994). “Section 212(c) was repealed in 1996, but the
Supreme Court partially extended its availability in INS v. St. Cyr, 533 U.S. 289, 121 S. Ct.
2271 . . . (2001).” Savoury v. United States Att’y Gen., 449 F.3d 1307, 1312 (11th Cir. 2006).
Although Hamilton was sentenced to seven-years imprisonment after pleading guilty to the
cocaine charges, he only served eighteen months in prison and was therefore statutorily eligible
for § 212(c) relief.
                                                  2
to exercise jurisdiction over those two types of claims even where the petitioner is

convicted of an aggravated felony.

       Hamilton has been before the IJ and BIA multiple times due to his reliance

on former § 212(c) and the subsequent cases of In re Soriano, 21 I. & N. Dec. 516,

520 (BIA 1996) (allowing the reopening of removal proceedings if the petitioner

conceded deportability prior to the enactment of AEDPA 2 in reliance on the

availability of section 212(c) relief), and INS v. St. Cyr, 533 U.S. 289, 121 S. Ct.

2271 (2001) (determining that AEDPA did not apply retroactively to aliens who

pleaded guilty prior to the enactment of the statute). In his third and latest

appearance before the Immigration Court, the IJ determined that Hamilton’s §

212(c) claim failed on the merits because Hamilton had done nothing to improve

himself, had failed to file taxes, had no property, children or dependents, had a

haphazard employment history, had no steady home, and had performed no

community service. The IJ weighed the equities and counter equities, and found

that it was not in the best interest of the community to award Hamilton § 212(c)

discretionary relief.




       2
          The Antiterrorism and Effective Death Penalty Act of 1996 (ADEPA) § 404(d), Pub. L.
No. 104-132, 110 Stat. 1214, 1277, rendered aliens convicted of aggravated felonies, regardless
of the length of their sentence, ineligible for discretionary relief from deportation under § 212(c)
of the INA. See Chuang v. United States Att’y Gen., 382 F.3d 1299, 1302 (11th Cir. 2004).
                                                    3
      Hamilton appealed that decision to the BIA, claiming that the IJ failed to

adequately balance the equities, was biased against him, appeared annoyed, and

was impaired from making independent findings of fact. The BIA affirmed the IJ

and entered a final order of removal, noting that Hamilton failed to demonstrate

unusual or outstanding equities. Hamilton did not appeal the BIA’s decision (just

as he did not appeal the BIA’s two prior decisions) but instead filed a motion to

reconsider. That motion did not specifically allege that his due process rights had

been violated but claimed that the IJ did not allow him to present new evidence and

did not give enough weight to the positive equities he offered. The BIA

subsequently denied Hamilton’s motion to reconsider, and Hamilton filed a timely

appeal to this court.

      We must begin by determining whether and to what extent we have

jurisdiction over Hamilton’s appeal. We review de novo questions of subject

matter jurisdiction. Jaggernauth v. United States Att’y Gen., 432 F.3d 1346, 1350

(11th Cir. 2005). Moreover, we have an obligation to inquire into subject matter

jurisdiction sua sponte whenever it may be lacking. Cadet v. Bulger, 377 F.3d

1173, 1179 (11th Cir. 2004).

      Although Hamilton did not expressly appeal the BIA’s final order of

removal, his motion to reconsider alleges some claims that are directly linked to

that decision and the underlying decisions of the IJ. We have no jurisdiction to
                                          4
consider those decisions for two reasons. First, because Hamilton was convicted of

possessing cocaine with the intent to distribute (an aggravated felony), we lack

jurisdiction under 8 U.S.C. § 1252(a)(2)(C) to review an order of removal entered

against him. We only have jurisdiction to the extent Hamilton raises a

constitutional claim or a question of law. Id. § 1252(a)(2)(D).

      Second, although the government did not raise the argument, we hold sua

sponte that we lack jurisdiction to review the BIA’s order of removal and the

underlying IJ decisions because Hamilton failed to file a timely appeal in this

court. The IJ’s removal order became final when it was affirmed by the BIA on

July 28, 2006. See 8 C.F.R. § 1241.1. Hamilton had thirty days to petition for

review of that order, but he failed to do so. See 8 U.S.C. § 1252(b)(1)–(2). The

motion to reconsider that Hamilton did file in a timely fashion did not toll the

thirty-day time period. Dakane v. United States Att’y Gen., 399 F.3d 1269, 1272

n.3 (11th Cir. 2005) (motion to reopen). Therefore, we have jurisdiction only to

review the BIA’s denial of Hamilton’s motion to reconsider. We cannot review

any claims arising out of the BIA’s order of removal or the attendant IJ orders,

including Hamilton’s constitutional due process claim to the extent it was not

included in his motion to reconsider. See Amaya-Artunduaga v. United States

Att’y Gen., 463 F.3d 1247, 1251 (11th Cir. 2006) (noting that procedural due



                                           5
process claims alleging that the petitioner was denied a full and fair hearing before

a neutral factfinder requires administrative exhaustion).

      Accordingly, we turn to Hamilton’s motion to reconsider. “Aliens are

entitled to due process of law in deportation [or removal] hearings.” Ibrahim v.

INS, 821 F.2d 1547, 1550 (11th Cir. 1987). “Due process is satisfied only by a full

and fair hearing.” Id. Thus, an alien’s procedural due process rights are violated

where he is denied a full and fair hearing before a neutral IJ. See Amaya-

Artunduaga, 463 F.3d at 1251. Our review here is for abuse of discretion. See

Assa’ad v. United States Att’y Gen., 332 F.3d 1321, 1341 (11th Cir. 2003).

Judicial review is “limited to determining whether there has been an exercise of

administrative discretion and whether the matter of exercise has been arbitrary and

capricious.” Abdi v. United States Att’y Gen., 430 F.3d 1148, 1149 (11th Cir.

2005) (citation and quotation marks omitted).

      Upon review of the record and the BIA’s denial of Hamilton’s motion to

reconsider, we find no abuse of discretion. The transcript from the IJ hearing

indicates that the IJ allowed Hamilton and all of his witnesses to testify. The IJ

listened to and evaluated the testimony, asked follow-up questions, and cited that

testimony is his oral decision. The IJ was not biased. While he challenged

Hamilton’s failure to improve himself, he also challenged government’s failure to

submit proof regarding Hamilton’s 2001 conviction for using false documents.
                                           6
Hamilton had a full and fair hearing before the IJ, and the BIA did not abuse its

discretion in refusing to reconsider its decision.

      PETITION DISMISSED IN PART, DENIED IN PART.




                                           7
