                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                    November 28, 2006
                                TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                       Clerk of Court


 SADIQ SHAM SUDDIN EBRAHIM ,

               Petitioner,                               No. 06-9549
          v.                                    (Bd. of Immigration Appeals)
 ALBERTO R. GONZALES, United                      (B.I.A. No. A98 425 565)
 States A ttorney General,

               Respondent.



                             OR D ER AND JUDGM ENT *


Before TA CH A, Chief Circuit Judge, HA RTZ, and TYM KOVICH, Circuit
Judges.


      Sadiq Shamsuddin Ebrahim seeks review of an order by the Board of

Immigration Appeals (BIA) affirming the denial by an immigration judge (IJ) of

his request for voluntary departure. He argues that (1) the IJ erred in finding that

he had made false claims of United States citizenship and (2) there was no



      *
       After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
evidence to support a finding that the alleged false claims occurred on or after

April 1, 1997. W e conclude that we lack jurisdiction to review his claims and

dism iss his petition for review .

      M r. Ebrahim, a native and citizen of Pakistan, entered the United States in

1996 on a nonimmigrant student visa. In September 2003 he failed to carry a full

course of study as required by his visa, and on September 9, 2004, the

Immigration and Naturalization Service (INS) 1 initiated removal proceedings

against him. M r. Ebrahim subsequently conceded removability but requested that

he be allowed to depart voluntarily.

      In an oral decision on February 15, 2005, the IJ denied M r. Ebrahim’s

application to depart voluntarily. In reaching his decision the IJ noted that

M r. Ebrahim had admitted that he had claimed to be a United States citizen to

obtain employment in restaurants in Texas and Oklahoma. The IJ said that this

admission weighed heavily against a grant of voluntary departure and concluded

“as a matter of discretion [that he] should deny [M r. Ebrahim’s] application for an

opportunity to voluntarily depart.” R. at 46. The BIA summarily affirmed the

IJ’s decision on April 19, 2006, leaving the IJ’s decision as the final agency

determination. M r. Ebrahim then sought review in this court.

      1
        The Notice to Appear issued to M r. Ebrahim on September 9, 2004, lists
the issuing agency as the INS. On M arch 1, 2003, however, the IN S ceased to
exist; its functions have been transferred to three separate agencies within the
Department of Homeland Security. See Abiodun v. Gonzales, 461 F.3d 1210,
1212 n.1 (10th Cir. 2006).

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      Although the BIA’s denial of voluntary departure is ordinarily outside the

scope of judicial review, see 8 U.S.C. § 1229c(f) (“No court shall have

jurisdiction over an appeal from denial of a request for an order of voluntary

departure . . . .”); id. § 1252(a)(2)(B)(I) (no court has jurisdiction to review “any

judgment regarding the granting of relief under section . . . 1229c [governing

voluntary departure]”), we are not ousted of jurisdiction to review “constitutional

claims” and “questions of law,” id. § 1252(a)(2)(D ); see Vargas v. Dep’t of

Homeland Sec., 451 F.3d 1105, 1107 (10th Cir. 2006). That exception to denial

of jurisdiction does not, however, avail M r. Ebrahim.

      M r. Ebrahim’s first argument— that the IJ erred in finding that he had made

a false claim of United States citizenship— raises no constitutional issue or

question of law. The IJ made no binding finding that M r. Ebrahim had made false

claims of citizenship. The government asserts in its brief that he was not “found

removable for making a false claim of . . . citizenship,” Resp’t Br. at 11, and that

the IJ’s ruling “does not preclude Ebrahim from presenting himself for admission

after the ten year bar [for all removed aliens] has expired,” id. at 12 n.6. Rather,

his claims of citizenship w ere merely a factor the IJ considered in exercising his

discretion to deny the application for voluntary departure. See M ichelson v. INS,

897 F.2d 465, 468 (10th Cir. 1990) (grant or denial of voluntary departure is

discretionary); Navidi-M asouleh v. Ashcroft, 107 F. Appx 856, 861 (10th Cir.

2004) (“[W]e do not have jurisdiction to review the BIA’s discretionary decision

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to grant petitioner voluntary departure.”). Accordingly, we lack jurisdiction to

review this argument. W e note that M r. Ebrahim’s testimony at the hearing

before the IJ may prejudice any future attempt by him to enter this country; but

that prejudice is not a consequence of any ruling by the IJ.

      M r. Ebrahim’s second argument is that there is no evidence in the record to

support a finding that his alleged false claim of citizenship occurred on or after

April 1, 1997, which he claims was the effective date for a statutory provision

rendering excludable an alien who makes such a false claim. See Illegal

Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-

208, § 344(a)(2), 110 Stat. 3009, 3009-637 (1996) (codified at 8 U.S.C.

§ 1182(a)(6)(C)(ii)). He is correct that “the record is silent” on the date his false

claim of citizenship occurred. Pet’r Br. at 17. But the record is also devoid of

any indication that he made this argument before the BIA. (His statement in his

brief to the BIA that “[t]here is . . . no evidence to support a finding if the alleged

false claim arose during the qualifying period for voluntary departure,” R. at 17,

is hardly the same claim he makes before this court.) W e therefore lack

jurisdiction to review it. See Galvez Pineda v. Gonzales, 427 F.3d 833, 837 (10th

Cir. 2005) (“Failure to exhaust administrative remedies by not first presenting a

claim to the BIA deprives this court of jurisdiction to hear it.”).




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W e DISM ISS M r. Ebrahim’s petition for review for lack of jurisdiction.


                                ENTERED FOR THE COURT


                                Harris L Hartz
                                Circuit Judge




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