                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 12-4360
                                     ___________

                                EAPEN VARGHESE,

                                                 Petitioner

                                           v.

         ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
                                    Respondent

                     ____________________________________

                      On Petition for Review of an Order of the
                            Board of Immigration Appeals
                             (Agency No. A041-999-587)
                   Immigration Judge: Honorable Walter A. Durling
                     ____________________________________

                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  April 10, 2013
         Before: SLOVITER, CHAGARES and GREENBERG, Circuit Judges

                            (Opinion filed: April 15, 2013)
                                    ___________

                                      OPINION
                                     ___________

PER CURIAM

      Eapen Varghese petitions for review of a final order of removal of the Board of

Immigration Appeals (“BIA”). For the reasons set forth below, we will deny the petition

for review.
       The facts being well-known to the parties, we highlight only those that are

pertinent to our decision. Varghese, a native and citizen of India, entered the United

States as a P-2 immigrant in 1990. He first appeared before an Immigration Judge (“IJ”)

in 2010, after violating a protective order. At that time, he was represented by an

attorney and was granted cancellation of removal. (A.R. 56-57.) After he was again

convicted of violating a protective order in 2012, the Department of Homeland Security

(“DHS”) initiated removal proceedings against him pursuant to 8 U.S.C. §

1227(a)(2)(E)(ii). (A.R. 89-90.) Varghese was personally served with a Notice to

Appear (“NTA”), advising him of his right to an attorney and containing a list of

attorneys that provided free legal services. (A.R. 93, 96.)

       Varghese appeared before the same IJ on June 13, 2012, and was not represented

by an attorney. The IJ asked him if he understood his “right to be represented by an

attorney at no expense to the United States Government.” (A.R. 53.) After answering

affirmatively, Varghese confirmed that he wanted to talk to the IJ by himself. Varghese

admitted all of the factual allegations in the Notice to Appear (“NTA”), including his

conviction for violating the protective order, and conceded that he had already received

cancellation of removal. The IJ told him that he could not receive that relief again,

denied his request for voluntary departure, and ordered him removed to India. (A.R. 57-

58; 61.)

       After retaining the same attorney who represented him in 2010, Varghese appealed

the IJ’s decision, arguing that the IJ improperly proceeded with the evidentiary hearing
                                             2
because Varghese did not knowingly waive his right to an attorney. (A.R. 11-12.) The

BIA dismissed Varghese’s appeal. (A.R. 7.) The BIA found that the IJ did not violate

Varghese’s right to counsel, because the transcript revealed that he knowingly waived his

right to counsel and chose to proceed with the hearing. (A.R. 6-7.) Additionally, the

record contained a list of free legal services that was signed by Varghese. (A.R. 7.) The

BIA also affirmed the IJ’s finding that removability was established by clear and

convincing evidence because Varghese admitted his conviction for violating a protective

order. (A.R. 6.) Varghese’s petition for review followed.

       We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). Varghese argues that the

IJ violated 8 C.F.R. § 1240.10, and therefore, the order of removal should be vacated and

a new hearing conducted. See Leslie v. Att’y Gen., 611 F.3d 171, 175 (3d Cir. 2010).

The Government responds that the IJ complied with the requirements set forth in 8 C.F.R.

§ 1240.10 and did not violate Varghese’s right to counsel. We agree.

       The IJ specifically informed Varghese that he had a right to an attorney at no

expense to the Government. See 8 C.F.R. §§ 1240.10(a)(1)-(a)(2). Varghese twice told

the IJ that he wanted to talk to him without an attorney. (A.R. 53.) Further, the record

reflects that Varghese received a list of free legal services, see 8 C.F.R. § 1240.10(a)(3),

as that list was entered into evidence at the hearing and bore his signature (A.R. 93, 96).

Based on the record, we cannot say that the IJ failed to follow the regulation (as was the

case in Leslie, 611 F.3d at 175), such that Varghese was deprived of his constitutional

right to counsel.
                                              3
       Varghese also argues that the IJ failed to comply with 8 C.F.R. § 1240.10(a)(4)

because he was not advised of his right to examine and object to the evidence presented

against him.1 The Government argues that we lack jurisdiction to consider this claim

because it was not first presented to the BIA, see 8 U.S.C. § 1252(d), or in the alternative,

that the claim is meritless.

       We agree that we lack jurisdiction to consider this argument. Varghese was

represented by counsel on appeal to the BIA, and the record reflects that he did not argue

that the IJ violated § 1240.10(a)(4) at his hearing. Because Varghese failed to “exhaust[]

all administrative remedies available” to him before the BIA, we cannot exercise

jurisdiction over that claim. 8 U.S.C. § 1252(d); see also Bonhometre v. Gonzales, 414

F.3d 442, 447-48 (3d Cir. 2005) (failure to argue procedural due process claims to BIA is

“fatal to our jurisdiction”). We will, therefore, deny the petition for review.




1
  The IJ’s compliance with the remainder of the regulation, that is, §§ 1240.10(a)(5)-
(a)(7), is undisputed.
                                            4
