                             UNPUBLISHED ORDER
                          Not to be cited per Circuit Rule 53




           United States Court of Appeals
                             For the Seventh Circuit
                             Chicago, Illinois 60604

                              Argued August 8, 2006
                            Decided September 26, 2006

                                       Before

                    Hon. DANIEL A. MANION, Circuit Judge

                    Hon. ILANA DIAMOND ROVNER, Circuit Judge

                    Hon. DIANE S. SYKES, Circuit Judge

No. 05-3786

JAYESH K. SHAH,                               Petition for Review of an Order of the
               Petitioner,                    Board of Immigration Appeals

      v.                                      No. A34-998-533

ALBERTO R. GONZALES,
              Respondent.

                                      ORDER

       Jayesh Shah petitions for review of an order of the Board of Immigration
Appeals (“BIA”) denying his motion to reconsider a final order denying a
discretionary waiver of inadmissability under 8 U.S.C. § 212(c). He primarily
challenges, on constitutional grounds, the BIA’s holding that he was statutorily
ineligible for relief under § 212(c). But we need not reach the constitutional issue
Shah raises because the BIA also upheld the immigration judge’s decision that
Shah did not merit a favorable exercise of discretion under § 212(c). In addition,
Shah failed to exhaust his administrative remedies with respect to his second
argument: that he was denied due process because he was not provided with
transcripts of the proceedings in the immigration court. Accordingly, we deny the
petition for review.
No. 05-3786                                                                    Page 2

                                          I.

       Shah, a native of India, was admitted to the United States in June 1977 and
became a lawful permanent resident. In December 1990, he pleaded guilty in the
Circuit Court of Cook County, Illinois, to one count of aggravated criminal sexual
abuse for having sexual contact with a minor under the age of fourteen, in violation
of 38 Ill. Rev. Stats. § 12-16(c)(1). He was sentenced to four years’ probation and a
fine. At the time Shah pleaded guilty, the conviction did not render him excludable
or deportable under then-applicable immigration law. Shah successfully completed
his probation, and in 2001, after ten years without another offense, was relieved of
his obligation under Illinois law to register as a sex offender. He had no further
criminal convictions.

       As part of the Illegal Immigration Reform and Immigrant Responsibility Act
(“IIRIRA”), enacted in 1996, the term “aggravated felony” was broadened to
encompass more offenses, including Shah’s. See 8 U.S.C. § 1101(a)(43)(A) (defining
“aggravated felony” to include “sexual abuse of a minor”). As a result, in August
2000 (nearly a decade after his conviction), the Immigration and Naturalization
Service (“INS”) served Shah with a Notice to Appear, charging him with
removability under 8 U.S.C. § 1227(a)(2)(A)(iii) for having committed an aggravated
felony after admission into the United States.

      Shah appeared before an immigration judge (“IJ”) and conceded removability.
He applied for a discretionary waiver of removal under § 212 of the Immigration
and Nationality Act (“INA”), as a lawful permanent resident who had maintained
an unrelinquished domicile in the United States for at least seven years. See 8
U.S.C. 1182(c). Although § 212(c) had also been repealed by IIRIRA and replaced
with a narrower discretionary provision for cancellation of removal that excludes
from eligibility anyone with a conviction for an aggravated felony, see 8 U.S.C. §
1229b, Shah remained eligible for relief under the original provision. The Supreme
Court held that the repeal of § 212(c) cannot be applied retroactively to aliens such
as Shah whose convictions were obtained by guilty plea prior to IIRIRA’s effective
date and who would have been eligible for the relief at the time of their plea. INS v.
St. Cyr, 533 U.S. 289 (2001).

       At a hearing in November 2004, Shah presented testimony and evidence in
support of his application. He submitted evidence of consistent employment since
his arrival in the United States and a letter from his current employer describing
him as “essential to our operations.” Also submitted were letters from members of
various civic and cultural organizations describing his involvement and his good
character. The content of Shah’s testimony is unknown because there is no
transcript in the record. The immigration judge denied Shah’s application in an
No. 05-3786                                                                     Page 3

oral ruling, though the absence of any transcript in the record means that the basis
for his decision is also unknown.

       Instead of immediately appealing to the BIA, Shah filed a motion for
reconsideration. He argued that the government attorney’s cross-examination,
which probed into the details underlying his conviction, amounted to an
impermissible “reopening” of his criminal case that was unfairly prejudicial. Shah
further contended that the IJ did not consider the mitigating evidence he had
submitted. In his motion Shah also reported that he had requested a transcript of
the IJ’s oral decision, but had not received one because transcripts are prepared
only for appeals, and he asserted that the available recording was of poor quality.

       The IJ denied Shah’s motion for reconsideration. In a written decision, the IJ
acknowledged Shah’s eligibility for a § 212(c) waiver, but concluded that the
evidence Shah provided “failed to establish that discretion be exercised in his
favor.” The IJ explained that he had “balanced the equities in favor of respondent
against the repulsive crime which he committed.” Shah’s motion, moreover, “fails to
raise any errors in fact” and “fails to persuasively identify any errors in the
application of the appropriate standard by which to measure respondent’s waiver
request.”

        Shah appealed to the BIA. Again, Shah requested a transcript of the IJ’s
decision, but he received a notice informing him that transcripts are not prepared
for appeals from decisions “denying motion to reopen.”1 Shah was informed that he
could listen to the tapes of the hearing or “address the need for a transcript” in his
appeal. In his brief to the BIA, Shah argued that the absence of a transcript
amounted to a denial of due process because he could not effectively develop his
arguments about the IJ’s errors. He also reiterated his arguments that on cross-
examination the government went beyond the scope of proving his conviction and
that, by failing to consider the mitigating evidence, the IJ improperly balanced the
equities in concluding that he did not merit a favorable exercise of discretion. In its
response brief, the government argued that Shah was no longer eligible for § 212(c)
relief in light of the BIA’s recision decision in In Re Blake, 23 I. & N. Dec. 722 (BIA


      1
        Shah states in his brief that his appeal to the BIA challenged not just the
IJ’s decision denying the motion for reconsideration but also the initial decision
denying him relief under § 212(c). And in the two-page summary attached to the
notice of appeal to the BIA stating the reasons for the appeal, Shah clearly targets
both decisions. But on the cover sheet of the notice of appeal, in the section entitled
“What decision are you appealing?” the only box that is checked is the one next to
the statement “I am filing an appeal from the Immigration Judge’s decision denying
a motion to reopen or reconsider dated January 31, 2005.”
No. 05-3786                                                                    Page 4

2005). In that case, the BIA held that an alien who was removable on the basis of a
conviction for a particular aggravated felony that was not also a ground of
inadmissibility under § 212(a) was not eligible for a waiver of inadmissability under
§ 212(c). Shah was convicted of an aggravated felony that is a basis for removal
but not for inadmissability—in fact, the same felony that the alien in Blake
committed—and the government argued that Shah was similarly barred from relief
under § 212(c).

       In a written decision issued on June 29, 2005, the BIA dismissed Shah’s
appeal. First, the BIA upheld the IJ’s decision to “deny a waiver on a discretionary
basis.” The BIA further noted that Shah’s motion to reconsider in the immigration
court “did not allege any error in the Immigration Judge’s decision.” In addition,
the BIA concluded that in light of Blake, Shah was no longer eligible for a waiver
under § 212(c).

        Shah then filed a motion to reconsider with the BIA. He disputed the BIA’s
statement that he had not alleged error in his motion requesting that the IJ
reconsider his ruling. Though he requested that the BIA “reconsider its decision
reviewing the errors alleged in the ‘Motion for Reconsideration’ and respondent’s
‘Appeal Brief,’” his brief did not mention the issues he had raised on appeal to the
BIA, namely, the IJ’s discretionary determination or the absence of transcripts in
the record. The only issue he discussed was the BIA’s conclusion that he was not
eligible for a waiver. Shah argued that Blake was inconsistent with the Supreme
Court’s decision in St. Cyr, in which the Court had reasoned that an alien could not
be stripped of rights he had relied upon at the time of his guilty plea. See St. Cyr,
533 U.S. at 321-24 (holding that repeal of § 212(c) would not be given retroactive
effect in part because it eliminated any possibility of § 212(c) relief for people who
had entered into plea agreements with the expectation that they would be eligible
for such relief). The BIA denied Shah’s motion, explaining that its “previous
decision in these proceedings was correct.” The BIA also restated that under Blake,
“because the aggravated felony ground of removal in this case, i.e., ‘sexual abuse of
a minor’ . . . has no statutory counterpart in the grounds of inadmissability under
section 212(a) of the Act, the respondent is not statutorily eligible to apply for a
section 212(c) waiver.”

       Shah then petitioned for review in this court, purporting to challenge both
the BIA’s decision upholding the IJ’s denial of relief under § 212(c) (“the June 29
decision”) and its decision denying his motion to reconsider. The government moved
to dismiss the appeal as untimely. Indeed, Shah did not file a notice of appeal from
the BIA’s June 29 decision within the required thirty days, depriving this court of
jurisdiction to review that decision. See 8 U.S.C. § 1252(b)(1); Sankarapillai v.
Ashcroft, 330 F.3d 1004, 1006 (7th Cir. 2003) (holding that thirty-day statutory
period for filing appeals from final orders of BIA is jurisdictional requirement).
No. 05-3786                                                                      Page 5

However, the notice of appeal is timely with respect to the BIA’s decision denying
the motion to reconsider, and after hearing from the parties, we entered an order
noting that “the petitioner is asking only that this court review the BIA’s order of
August 25, 2005.”

                                          II.

       Shah first challenges the denial of his motion to reconsider on the ground
that the statutory interpretation that the BIA announced in Blake, and its
retroactive application in his case, is unconstitutional. He contends that the BIA’s
interpretation of the statute arbitrarily creates two classes of aliens and has the
bizarre result of “punishing” aliens like him whose offenses are too minor to be
grounds for inadmissibility while reserving greater rights for aliens whose offenses
are more severe. The government has not responded to the argument, however,
instead urging us to dismiss Shah’s petition for lack of jurisdiction because the BIA
also affirmed the IJ’s decision that Shah did not merit a favorable exercise of
discretion under § 212(c), and that decision is not reviewable.

       The government’s argument that we lack jurisdiction to review the BIA’s
decision denying Shah’s motion for reconsideration is flawed. The government cites
8 U.S.C. § 1252(a)(2)(B)(ii), which strips reviewing courts of jurisdiction to review
any decision, other than those granting or denying asylum, that is within the
discretion of the Attorney General. But Shah is not seeking only a review of a
discretionary decision: the BIA also denied the motion to reconsider on the ground
that Shah was not eligible for § 212(c) relief under Blake, rejecting Shah’s argument
that Blake was wrongly decided and unconstitutional. A determination that an
alien is not eligible for discretionary relief is different than the decision that he is
not entitled to such relief. See Velez-Lotero v. Achim, 414 F.3d 776,780 (7th Cir.
2005). The BIA’s decision was a purely legal conclusion that Shah no longer
qualified for the relief he sought. He now argues that the decision violates his
constitutional rights to due process and equal protection, and we have jurisdiction
to review “constitutional questions and questions of law.” REAL ID Act of 2005,
Pub. L. No. 109-13, 119 Stat. 231, § 106(a)(1)(iii); see Quezada-Luna v. Gonzales,
439 F.3d 403, 405 (7th Cir. 2006).

       Nevertheless, we decline to address Shah’s argument that the BIA’s decision
rendering him ineligible for a waiver of inadmissibility is unconstitutional because
the petition must still be denied on the ground that he never challenged the BIA’s
alternate basis for denying relief, and he is now barred from doing so. “Non-
constitutional arguments always come first; constitutional contentions must be set
aside until their resolution is unavoidable.” Rehman v. Gonzales, 441 F.3d 506, 508
(7th Cir. 2006); Ameritech Corp. v. McCann, 403 F.3d 908, 911 (7th Cir. 2005)
(“federal courts are supposed to explore all non-constitutional grounds of decision
No. 05-3786                                                                       Page 6

first”). In its June 29 decision the BIA upheld the IJ’s conclusion that Shah did not
merit a favorable exercise of discretion under § 212(c); in other words, that he was
not entitled to relief even if eligible. Though he stated at oral argument that he
asked the BIA to reconsider a number of issues, we read his brief to the BIA as
challenging Blake. Shah did not challenge the portion of the BIA’s decision
upholding the discretionary determination in his motion to reconsider and does not
challenge it in this court (nor could he, given the limited scope of the appeal). That
decision is now “unassailable.” See Rehman, 441 F.3d at 508. As a result, even if
we were to address Shah’s argument that the BIA’s decision in Blake is
unconstitutional, a favorable decision would not help him because it would simply
reinstate his eligibility for relief under § 212(c). But an IJ already decided that he
did not warrant such relief and the BIA affirmed this decision. We do not think
Shah effectively challenged the discretionary decision in his motion to reconsider,
but even if he had challenged it at every level, we still would have lacked
jurisdiction to address the issue on appeal. 8 U.S.C. § 1252(a)(2)(B)(ii); see Tunis v.
Gonzales, 447 F.3d 547, 549 (7th Cir. 2006).

       Shah also argues that he was denied due process because he was never
provided with a transcript of the proceedings before the IJ. We do not have
jurisdiction to address this argument because, by not raising it in his motion to
reconsider, Shah failed to exhaust his administrative remedies. See Awad v.
Ashcroft, 328 F.3d 336, 340 (7th Cir. 2003) (holding that exhaustion requirement is
jurisdictional and declining to address argument alien did not raise in motion to
reconsider). On appeal to the BIA, Shah argued that the denial of access to
transcripts amounted to a denial of due process and requested the opportunity to
alter or amend his brief if the BIA ordered preparation of a transcript. The BIA’s
decision dismissing Shah’s appeal does not address the adequacy of the record or
resolve Shah’s due process challenge. Nevertheless—despite his contrary
representation at oral argument—in his motion to reconsider, Shah did not raise
the issue; he attacked the portion of the BIA’s decision addressing his eligibility for
a discretionary waiver of inadmissability in light of Blake. He thereby failed to
exhaust his administrative remedies and deprived this court of jurisdiction to
consider his argument that he was denied due process.

                                          III.

       The BIA’s June 29 decision provided two separate reasons for upholding the
IJ’s decision to deny § 212(c) relief: first, that Shah was not entitled to such relief;
and, second, that he was no longer eligible for it in any case. The discretionary
portion of the BIA’s decision is now unreviewable, and provides a basis for deciding
this appeal without addressing Shah’s constitutional challenge to the BIA’s holding
in Blake. Further, Shah’s failure to exhaust his administrative remedies with
No. 05-3786                                                                     Page 7

respect to his due-process argument deprives this court of jurisdiction to address it.
The petition for review is DENIED.
