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                                                             [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 14-10069
                           Non-Argument Calendar
                         ________________________

                           Agency No. A205-574-862



ARTHUR FRITZ-JOHN FRANCIS,

                                                                         Petitioner,

                                     versus

U.S. ATTORNEY GENERAL,

                                                                        Respondent.

                         ________________________

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

                                (March 17, 2015)

Before TJOFLAT, WILSON, and JULIE CARNES, Circuit Judges.

PER CURIAM:

     Petitioner Arthur Fritz-John Francis, a native of Jamaica and citizen of
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Bermuda, proceeding pro se, seeks review of the Department of Homeland

Security’s (“DHS”) Final Administrative Removal Order issued pursuant to the

Immigration and Nationality Act (“INA”), 8 U.S.C. § 1228(b). On appeal,

Petitioner argues that he was not removable because his New York conviction for

attempted third-degree sale of cocaine was not an aggravated felony. He also

argues that the expedited removal process violated his due process rights. After

careful review, we dismiss the petition in part, and deny in part.

                                  I. Background

      On December 3, 2013, the DHS issued Petitioner a Notice of Intent to Issue

a Final Administrative Removal Order, which alleged that Petitioner was subject to

expedited removal because he was not lawfully admitted for permanent residence

and he had been previously convicted of attempted third-degree sale of cocaine, in

violation of New York Penal Law §§ 110.00 (attempt) and 220.39(1) (criminal sale

of a controlled substance in the third degree). The notice of intent charged that

Petitioner was removable, pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), because his

New York conviction was an aggravated felony as defined by 8 U.S.C.

§ 1101(a)(43)(U).

      The notice of intent informed Petitioner of his right to be represented by

counsel “authorized to practice in this proceeding” and his right to contest his



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removability. It stated that Petitioner had ten calendar days to respond in writing

to the charges and “rebut the charges stated above (with supporting evidence).”

      On that same day, Petitioner responded by checking a box on the notice

indicating that he was admitting the allegations and charges and that he was

deportable, acknowledging that he was not eligible for any relief from removal,

and waiving his right to rebut and contest the charges against him. Petitioner also

checked the box indicating that he was waiving his right to remain in the United

States for 14 days in order to seek judicial review. The next day, the DHS issued a

final removal order against Petitioner. This petition for review followed.

                                   II. Discussion

      On appeal, Petitioner first argues that his New York conviction for

attempted third-degree sale of cocaine is not an aggravated felony, and thus, he

was not removable as charged. Second, he argues that the expedited removal

process in general violated his due process rights. He also contends that the DHS

violated his due process rights by denying his request to speak with his attorneys

from his criminal case. In response, the government argues that we lack

jurisdiction to review Petitioner’s arguments because he failed to exhaust his

administrative remedies.




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      A.     Aggravated Felony

      We review de novo our own subject matter jurisdiction. Gonzalez-Oropeza

v. U.S. Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003). A court may not review

a final order of removal unless “the alien has exhausted all administrative remedies

available to the alien as of right.” 8 U.S.C. § 1252(d)(1). We lack jurisdiction to

consider a claim raised in a petition for review unless the petitioner exhausted his

administrative remedies with respect to that issue. Amaya-Artunduaga v. U.S.

Att’y Gen., 463 F.3d 1247, 1250-51 (11th Cir. 2006). When an alien in expedited

removal proceedings fails to contest the classification of his conviction as an

aggravated felony in his response to the notice of intent, he has failed to exhaust

the argument that he is not an aggravated felon, and we lack jurisdiction to review

a claim based on that argument. Malu v. U.S. Att’y Gen., 764 F.3d 1282, 1287-89

(11th Cir. 2014).

      The INA provides that “[a]ny alien who is convicted of an aggravated felony

at any time after admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii). The INA

authorizes the Attorney General to institute expedited removal proceedings with

respect to aliens convicted of aggravated felonies. See id. § 1228(b). In such

proceedings, the DHS is required to serve the alien who was purportedly convicted

of an aggravated felony with a notice of intent that advises him of the legal and

factual basis of the charges, informs him of his right to request withholding of

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removal, and informs him of his opportunity to rebut the charges within ten

calendar days. 8 C.F.R. § 1238.1(b)(2)(i). The regulations further provide that, in

the alien’s response to the notice of intent, he may designate a country of removal,

rebut the notice’s allegations, request an opportunity to review the government’s

evidence, request withholding of removal, and/or request that an extension of time

be granted. Id. § 1238.1(c)(1). Alternatively, the alien can concede deportability.

Id. § 1238.1(d)(1). In the event that the alien concedes deportability (or if the alien

does not submit a timely response and the evidence establishes removability by

clear and convincing evidence), the DHS is required by the regulations to issue the

final administrative removal order. Id.

      Here, we lack jurisdiction over Petitioner’s argument that his New York

conviction for attempted third-degree sale of cocaine was not an aggravated felony.

As the record shows, Petitioner did not properly challenge that determination

during his expedited removal proceedings. Despite receiving the notice of intent

that charged him as removable as an aggravated felon and informed him of his

right to respond by rebutting the charges, Petitioner immediately admitted the

allegations and charges, conceded that he was deportable, and waived his right to

rebut and contest the charges. Petitioner did not challenge the determination that

he was removable as an aggravated felon until after he had already responded by

conceding removability and the DHS had issued the final removal order. Because

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Petitioner did not argue that his conviction was not an aggravated felony in his

response to the notice of intent and before the DHS issued the final removal order,

he failed to exhaust his administrative remedies as to this issue. Accordingly, we

lack jurisdiction to consider this argument, and we dismiss the petition for review

as to this issue. See Malu, 764 F.3d at 1287-89.

      B.     Due Process Claims

      Because Petitioner is removable based on his prior aggravated felony

conviction, we only retain jurisdiction to review constitutional claims or questions

of law. See 8 U.S.C. § 1252(a)(2)(C) and (D). As previously discussed, we lack

jurisdiction to review unexhausted arguments raised for the first time in a petition

for review. However, some constitutional claims do not require exhaustion

because the agency does not have the authority to adjudicate those claims. See

Sundar v. INS, 328 F.3d 1320, 1325 (11th Cir. 2003). Nevertheless, where the

agency can provide a remedy to the constitutional claim, “the exhaustion

requirement applies with full force.” Id. Thus, “procedural due process claims, as

well as procedural errors argued in due process terms, must be raised before” the

agency. Amaya-Artunduaga, 463 F.3d at 1251 (holding that the petitioner’s due

process claim that he was denied a full and fair hearing because the Immigration

Judge was biased was the kind of procedural error that required exhaustion).

Assuming we have jurisdiction, “[w]e review constitutional challenges, including

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alleged due process violations, de novo.” Lapaix v. U.S. Att’y Gen., 605 F.3d

1138, 1143 (11th Cir. 2010).

      Aliens are entitled to due process of law in deportation hearings, which is

satisfied only by a full and fair hearing. Ibrahim v. INS, 821 F.2d 1547, 1550 (11th

Cir. 1987). To establish due process violations in removal proceedings, an alien

must show that he was deprived of liberty without due process of law, and that the

asserted errors caused him substantial prejudice. Lonyem v. U.S. Att’y Gen., 352

F.3d 1338, 1341-42 (11th Cir. 2003). “To show substantial prejudice, an alien

must demonstrate that, in the absence of the alleged violations, the outcome of the

proceeding would have been different.” Lapaix, 605 F.3d at 1143.

      As an initial matter, we lack jurisdiction to review Petitioner’s argument that

the DHS violated his due process rights by denying him access to his attorney.

The record reflects that Petitioner never raised this argument before the DHS in his

expedited removal proceedings, but instead is raising it for the first time on appeal.

As this is a procedural due process claim for which the DHS could provide a

remedy, the government correctly argues that we lack jurisdiction to review this

claim based on Petitioner’s failure to exhaust. See Amaya-Artunduaga, 463 F.3d at

1251. Accordingly, we dismiss Petitioner’s petition for review as to this issue.

      Petitioner’s other argument is not that the DHS violated his due process

rights by failing to follow the applicable regulatory procedures. Instead, he argues

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that the expedited removal process in general constitutes a denial of due process

because (1) it does not involve a hearing before a neutral magistrate (expedited

removal proceedings are conducted by Immigration and Customs Enforcement

officials instead of an Immigration Judge), (2) the penalties are too severe because

expedited removal proceedings prevent aliens from applying for relief they are

otherwise eligible to apply for, and (3) such proceedings create a “substantial

social stigma.” The government is correct that Petitioner failed to exhaust this due

process argument by raising it in his expedited removal proceedings. However,

Petitioner’s failure to exhaust does not deprive this Court of jurisdiction to review

the constitutionality of the expedited removal process because the DHS would not

have the authority to adjudicate such a claim and provide a remedy by declaring

the expedited removal process to be unconstitutional. See Sundar, 328 F.3d at

1325. See also Matter of Salazar-Regino, 23 I. & N. Dec. 223, 231 (BIA 2002)

(“We have long declared that we lack the authority to rule on the constitutionality

of the statutes we administer.”).

      Exercising our jurisdiction, we conclude that the expedited removal process

does not violate an alien’s due process rights. While expedited removal

proceedings do not involve a hearing before an Immigration Judge, the INA

provides that aliens in expedited removal proceedings must be allowed (1)

reasonable notice of the charges; (2) the privilege of being represented by counsel

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(at no expense to the government); (3) a reasonable opportunity to inspect the

evidence and rebut the charges; (4) a determination for the record that the

individual upon whom the notice is served is, in fact, the alien named in such

notice; (5) a record maintained for judicial review; and (6) a procedure designed to

ensure that the same person who issues the charges does not adjudicate the final

order of removal. 8 U.S.C. § 1228(b)(4). Our fellow circuit courts of appeal that

have considered the constitutionality of such provisions have all concluded that

these procedures comport with due process. See United States v. Rangel de

Aguilar, 308 F.3d 1134, 1138 (10th Cir. 2002); United States v. Garcia-Martinez,

228 F.3d 956, 961 (9th Cir. 2000); United States v. Benitez-Villafuerte, 186 F.3d

651, 659 (5th Cir. 1999). We agree.

      To the extent that Petitioner’s argument could be construed as a challenge to

him personally being placed in expedited removal proceedings because those

proceedings precluded him from applying for relief in the form of a waiver of

inadmissibility under either former § 1182(c) of Title 8 of the United States Code

or 8 U.S.C. § 1182(h), Petitioner has not alleged a colorable constitutional claim

because aliens do not “have a constitutionally protected interest in discretionary

forms of relief,” and both waivers are discretionary. See Guzman-Munoz v. U.S.

Att’y Gen., 733 F.3d 1311, 1314 (11th Cir. 2013) (citing Scheerer v. U.S. Att’y

Gen., 513 F.3d 1244, 1253 (11th Cir. 2008)). See also 8 U.S.C. § 1182(h) (“The

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Attorney General may, in his discretion, waive [certain grounds of

inadmissibility]”); 8 C.F.R. § 1212.3 (“[a]pplication for the exercise of discretion

under former section [1182(c)]”). Accordingly, we deny the petition for review as

to this issue.

       PETITION DISMISSED IN PART, DENIED IN PART.




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