                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 12-1690


SALLAHADIN BIRHAN,

                Petitioner,

          v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.



On Petition for Review of an Order of the Board of Immigration
Appeals.


Submitted:   August 10, 2012                 Decided:   August 17, 2012


Before GREGORY, DUNCAN, and KEENAN, Circuit Judges.


Petition dismissed by unpublished per curiam opinion.


Sallahadin Birhan, Petitioner Pro Se.      Robbin Kinmonth Blaya,
Office of Immigration Litigation, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Sallahadin Birhan, a native and citizen of Ethiopia,

petitions for review of an order of the Board of Immigration

Appeals    (“Board”)    dismissing          his       appeal    from     the    immigration

judge’s     order   finding      him        removable          because     he       had     been

convicted of an aggravated felony and a controlled substance

offense.    We dismiss the petition for review.

            Under       INA           § 237(a)(2)(A)(iii),                 8            U.S.C.A.

§ 1227(a)(2)(A)(iii)          (West       2005    &    Supp.     2012),       an        alien    is

removable for having been convicted of an aggravated felony at

any time after admission.             Under INA § 101(a)(43)(B), 8 U.S.C.A.

§ 1101(a)(43)(B) (West 2005 & Supp. 2012), an aggravated felony

includes “illicit trafficking in a controlled substance . . .

including a drug trafficking crime (as defined in section 924(c)

of Title 18)[.]”        In addition, a conviction for a conspiracy to

commit a drug trafficking crime is also an aggravated felony.

See INA § 101(a)(43)(U); 8 U.S.C.A. § 1227(a)(43)(U).                                   Under 18

U.S.C. § 924(c)(2), a drug trafficking crime means any felony

punishable    under     the    Controlled             Substances    Act.            Under       INA

§ 237(a)(2)(B)(i),      8     U.S.C.A.       § 1227(a)(2)(B)(i),               an       alien    is

deportable for having been convicted of a controlled substance

offense at any time after admission.

            Under   8   U.S.C.        §    1252(a)(2)(C)          (2006),       this       court

lacks      jurisdiction,        except           as      provided        in         8     U.S.C.

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§ 1252(a)(2)(D) (2006), to review the final order of removal of

an alien convicted of certain enumerated crimes, including an

aggravated felony.          Under § 1252(a)(2)(C), this court retains

jurisdiction “to review factual determinations that trigger the

jurisdiction-stripping provision, such as whether [Birhan] [i]s

an alien and whether []he has been convicted of an aggravated

felony.”     Ramtulla v. Ashcroft, 301 F.3d 202, 203 (4th Cir.

2002).           Once    the      court    confirms         these    two     factual

determinations, then, under 8 U.S.C. § 1252(a)(2)(C), (D), it

can only consider “constitutional claims or questions of law.”

See Mbea v. Gonzales, 482 F.3d 276, 278 n.1 (4th Cir. 2007).

            Birhan, who is proceeding pro se, does not challenge

the   finding     that    he     was   convicted     of    an   aggravated    felony

despite    the    pending      appeal.    Birhan’s        failure   to    raise    this

challenge in his opening informal brief results in abandonment

of the claim.        See Ngarurih v. Ashcroft, 371 F.3d 182, 189 n.7

(4th Cir. 2004); Edwards v. City of Goldsboro, 178 F.3d 231, 241

n.6 (4th Cir. 1999) (same).               Therefore, we neither review the

finding that he had a prior conviction of an aggravated felony

nor   address     the    issue    of   whether   a   conviction      is    final    for

immigration purposes if the direct appeal is pending.

            Birhan does challenge his counsel’s effectiveness and

claims he was denied due process because he should have been

able to apply for relief under the Convention Against Torture.

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Because Birhan failed to exhaust these issues below, this court

is without jurisdiction to review.                  See 8 U.S.C. § 1252(d)(1)

(2006); Massis v. Mukasey, 549 F.3d 631, 638-40 (4th Cir. 2008).

              Because Birhan is an alien who was convicted of an

aggravated      felony     and      he    does      not    raise        an    exhausted

constitutional     claim       or   a    question    of   law,     we    dismiss     the

petition for review.           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.

                                                              PETITION DISMISSED




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