                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 October 15, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                              FOR THE TENTH CIRCUIT




    JUAN MARTINEZ SOLORZANO,

                Petitioner,

    v.                                                   No. 09-9500
                                                     (Petition for Review)
    ERIC H. HOLDER, JR.,
    United States Attorney General,

                Respondent. *


                              ORDER AND JUDGMENT **


Before HENRY, Chief Judge, BRORBY, Senior Circuit Judge, and HARTZ,
Circuit Judge.



         Petitioner Juan Martinez Solorzano, a native and citizen of Mexico, appeals

a decision of the Board of Immigration Appeals (BIA) dismissing an appeal from

an immigration judge’s order to remove him from the United States because of an

*
     Pursuant to Fed. R. App. P. 43(c)(2), Eric H. Holder, Jr. is substituted for
Michael B. Mukasey as the respondent in this appeal.
**
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
earlier California felony conviction for possession of a controlled substance with

intent to sell. Our jurisdiction arises generally under 8 U.S.C. § 1252(a), and we

dismiss the petition for review in part and deny it in part. We first determine that

we lack jurisdiction over petitioner’s nonconstitutional claim because he did not

exhaust administrative remedies. Then we address his constitutional claims but

hold that none of the limited constitutional rights available to aliens were

violated.

Background

      Petitioner entered this country illegally in 1986. In 1995, he was convicted

in California of a controlled substance felony, as noted above, and sentenced to

three years’ imprisonment. Admin. R. 278. Petitioner married a United States

citizen in April 2001, and shortly thereafter applied for legal permanent resident

status. In January 2002, a California court reduced the controlled substance

charge from a felony to a misdemeanor and dismissed it. Four months later, in

May 2002, petitioner was granted legal permanent resident (LPR) status.

Petitioner maintains that the Department of Homeland Security was fully aware of

his prior conviction at the time it granted him LPR status.

      The following September, upon motion from the People, a California court

reinstated the controlled substance charge as a felony. Less than two years later,

in July 2004, petitioner was served with a Notice to Appear pursuant to 8 U.S.C.

§ 1227(a)(2)(B)(i), which makes him removable because he is an alien who, after

                                         -2-
he was granted LPR status, became inadmissible due to the reinstated California

controlled substance conviction. 1

      After a hearing before an immigration judge (IJ), petitioner was ordered

removed. The BIA dismissed the appeal, noting that (1) petitioner is removable

because of the California felony drug conviction, (2) the pendency of petitioner’s

motion to reopen the criminal case in California did not affect the finality of the

conviction for immigration purposes, (3) there was no due process violation or

showing of prejudice by petitioner, and (4) the IJ was not biased. Admin. R.

at 2-3.

      Petitioner filed a petition for review, arguing that the removal order

abridged his constitutional rights because “his 1995 conviction was reduced to a

misdemeanor and his conviction expunged in 2002,” and that the removal order

interfered with his “vested right” to maintain his previous status as an LPR.

Aplt. Opening Br. at 9.

Discussion

      Respondent argues that this court lacks jurisdiction to review a final order

of removal when the alien is removable by reason of having committed a

controlled substance violation. See 8 U.S.C. §§ 1252(a)(2)(C),


1
      In September 2007, petitioner filed a motion in California to reopen the
criminal case which, while pending at the time of the administrative proceedings
here, was eventually denied.


                                         -3-
1182(a)(2)(A)(i)(II). Respondent concedes, however, that we do have jurisdiction

to determine whether the jurisdictional bar of § 1252(a)(2)(C) applies which, in

this case, necessarily involves reviewing whether petitioner is (1) an alien,

(2) who is removable, (3) by reason of his controlled substance conviction. See

Tapia Garcia v. INS, 237 F.3d 1216, 1220 (10th Cir. 2001); see also Khalayleh v.

INS, 287 F.3d 978, 979 (10th Cir. 2002) (“Ironically, our resolution of the

jurisdictional issue also resolves the merits of the petition that we lack

jurisdiction to review.”).

      Petitioner does not dispute that he is an alien and that he pled guilty in a

California court to a controlled substance felony. As best we can understand his

claim, he makes the legal argument that he is not removable because his

disclosure of his prior felony conviction before being granted LPR status

forecloses removability. Before this court can review that issue, however,

petitioner must show that he “has exhausted all administrative remedies available

to [him] as of right.” 8 U.S.C. § 1252(d)(1). Because petitioner did not raise this

issue to the BIA, and because it is not a constitutional issue, this court has no

jurisdiction to review the matter. See Rivera-Zurita v. INS, 946 F.2d 118, 120 n.2

(10th Cir. 1991).

      Petitioners’ constitutional arguments are on a different footing, both in

terms of this court’s jurisdiction to review them and in terms of the usual

exhaustion requirement. An exception to the § 1252(a)(2)(C) bar on appellate

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review of removal orders based on conviction of § 1182(a)(2) offenses applies

where a petitioner raises constitutional claims or questions of law. 8 U.S.C.

§ 1252(a)(2)(D); see also Arambula-Medina v. Holder, 572 F.3d 824, 828 (10th

Cir. 2009). Respondent argues that no such claim has been raised here by

petitioner. We disagree. Although his constitutional claims are rather sketchy, it

can fairly be said that petitioner raised a procedural due process claim to the BIA

and repeats that claim on appeal, and that he may also be raising a substantive due

process claim to this court.

      With regard to the new constitutional claim raised for the first time on

appeal, there is an exception to the usual exhaustion requirement:

      [Section] 1252(d)(1) requires exhaustion only of “remedies available
      to the alien as of right.” Thus, we have not required exhaustion of
      constitutional challenges to the immigration laws, because the BIA
      has no jurisdiction to review such claims. Indeed, it is more broadly
      recognized that the BIA lacks authority to resolve constitutional
      questions as a general matter and, hence, that this exhaustion
      exception extends to constitutional issues per se. The only caveat is
      that objections to procedural errors or defects that the BIA could
      have remedied must be exhausted even if the alien later attempts to
      frame them in terms of constitutional due process on judicial review.

Vicente-Elias v. Mukasey, 532 F.3d 1086, 1094 (10th Cir. 2008) (citations and

quotations omitted). Petitioner’s argument that the removal order abridged his

substantive due process rights because he has a vested interest in his LPR status is

a constitutional argument not based on procedural errors or defects and thus is not




                                        -5-
subject to the exhaustion requirement. We review constitutional claims de novo.

Alzainati v. Holder, 568 F.3d 844, 851 (10th Cir. 2009).

      Turning first to the procedural due process claim, petitioner cites Goldberg

v. Kelly, 397 U.S. 254, 267-68 (1970), holding that persons facing governmental

deprivation of life, liberty, or property must receive adequate notice and an

effective opportunity to be heard. We have held that “when facing removal,

aliens are entitled only to procedural due process, which provides the opportunity

to be heard at a meaningful time and in a meaningful manner.” Schroeck v.

Gonzales, 429 F.3d 947, 952 (10th Cir. 2005) (quotation omitted). Further, “[a]n

alien in removal proceedings is entitled only to the Fifth Amendment guarantee of

fundamental fairness.” Id.

      Petitioner had proper notice and has proceeded through all of the steps in

the administrative immigration process, including a hearing before an

immigration judge at which he was represented by counsel; a review by the BIA,

after submission to that body of a counseled brief on appeal; and now gets a

limited review by this court. He has enjoyed all of the process to which he was

due and has failed to show that he was prejudiced by the removal proceedings.

See Brue v. Gonzales, 464 F.3d 1227, 1233-34 (10th Cir. 2006).

      Petitioner’s substantive due process argument seems to be that his LPR

status was a vested right which could not be revoked unless he again violated the

immigration laws. He cites no case, however, holding that an alien has a right of

                                         -6-
any kind, vested or otherwise, to remain in the United States under the

circumstances here. In fact, “aliens do not have a constitutional right to enter or

remain in the United States.” Id. at 1233 (quotation omitted).

      Petitioner argues that “it is fundamentally unfair for the government to

grant a right upon which persons will reasonably rely and then later take away

that right away [sic] with no new reason or behavior by that person.” Aplt.

Opening Br. at 24. 2 “[S]ubstantive due process prevents the government from

engaging in conduct that shocks the conscience or interferes with rights implicit

in the concept of ordered liberty.” United States v. Salerno, 481 U.S. 739, 746

(1987) (quotations and citations omitted). While petitioner did nothing to cause a

change in his LPR status after its initial grant, the operation of the California

court in rectifying the error it made in changing his original felony conviction to a

misdemeanor did exact such a change. The fact that a court corrected a mistake,

thus bringing petitioner back within the ambit of § 1227(a)(2)(B), does not strike

2
       Petitioner’s brief gives the impression that his LPR status was granted and
then stripped away without any intervening change in circumstance. His opening
brief states as an issue “[w]hether it was an abuse of discretion that resulted in a
violation of the constitutional rights of the petitioner when the government
sustained removability against the petitioner under INA § 212(a)(2)(A)(i) by
finding that he was an aggravated felon despite the fact that his 1995 conviction
was reduced to a misdemeanor and his conviction expunged in 2002?” Aplt.
Opening Br. at 2. The rest of the story, of course, is that within eight months of
reducing his conviction from a felony to a misdemeanor, the California court
realized its error and reinstated petitioner’s conviction as a felony. Thus at the
time of the removal proceeding, petitioner stood convicted of a controlled
substance felony, contrary to the impression created in petitioner’s brief.


                                          -7-
us as so unfair that it either shocks the conscience or interferes with rights

implicit in the concept of ordered liberty. See id. (quotation omitted). 3

      The petition for review is DISMISSED in part and DENIED in part.


                                                      Entered for the Court



                                                      Robert H. Henry
                                                      Chief Circuit Judge




3
       Petitioner’s res judicata argument, as well as his waiver and ultra vires
arguments, were not raised to the BIA. While petitioner is not required to exhaust
constitutional arguments on appeal, Vicente-Elias v. Mukasey, 532 F.3d 1086,
1094 (10th Cir. 2008), the same is not true for legal arguments, such as these,
which must be exhausted, Rivera-Zurita v. INS, 946 F.2d 118, 120 n.2 (10th Cir.
1991).


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