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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-10546
Non-Argument Calendar
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Agency No. A060-126-661
MIKHAIL ABAM WATSON,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(March 8, 2019)
Before MARCUS, ROSENBAUM and HULL, Circuit Judges.
PER CURIAM:
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Mikhail Watson, an alien previously convicted of drug and firearm offenses,
seeks review of the Board of Immigration Appeals’ (“BIA”) final order of removal
affirming the Immigration Judge’s denial of Watson’s application for asylum and
withholding of removal under the Immigration and Nationality Act (“INA”) and
for protection under the United Nations Convention Against Torture (“CAT”).
After review, we dismiss Watson’s petition for review for lack of jurisdiction.
I. BACKGROUND FACTS
Watson is a native and citizen of Jamaica who was living in the United
States as a lawful permanent resident. In 2015, Watson was convicted in Florida
state court of carrying a concealed firearm and of conspiring to traffic, and
delivering, methylenedioxymethamphetamine (“MDMA”), for which he received
two concurrent 18-month prison sentences.
In his removal proceedings, Watson was represented by counsel and
conceded his removability under (1) INA § 237(a)(2)(B)(i),
8 U.S.C.
§ 1227(a)(2)(B)(i), for having been convicted of an offense relating to a controlled
substance after admission (his Florida MDMA convictions); and (2) INA
§ 237(a)(2)(C),
8 U.S.C. § 1227(a)(2)(C), for having been convicted of a firearms
offense after admission (his Florida firearm conviction). Watson also conceded
that his Florida convictions were aggravated felonies that were also “particularly
serious crimes,” rendering him ineligible for asylum or withholding of removal
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under INA § 208(b)(2)(A)(ii), (B)(i),
8 U.S.C. § 1158(b)(2)(A)(ii), (B)(i), and
INA§ 241(b)(3)(B)(ii),
8 U.S.C. § 1231(b)(3)(b)(ii), and that, as such, he was
seeking only CAT relief.
With respect to his CAT claim, Watson maintained that he is bisexual and
that if he were returned to Jamaica, he would be tortured or killed because of his
sexual orientation. Watson submitted country conditions evidence that Jamaica
criminalizes homosexual sex and that the Jamaican LGBTQ community faces
homophobia, discrimination and violence. At his hearing, Watson presented
testimony from himself, his parents, and the mother of his two U.S.-born children.
Watson testified that while living in Jamaica, he was forced by an angry mob to
flee his hometown and live with his grandmother after neighbors learned he was in
a romantic relationship with another man named Kemar and that Kemar was killed
by these neighbors shortly thereafter because of his sexual orientation.
In their rulings, both the Immigration Judge (“IJ”) and the BIA noted
Watson’s concessions and confirmed that Watson sought only CAT relief. The IJ
determined, and the BIA agreed, that: (1) Watson was not credible; and (2) even if
Watson was credible, he had not shown that it was more likely than not that he
would be tortured in Jamaica because he is bisexual.
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II. DISCUSSION
Watson’s pro se petition for review argues that he presented sufficient
evidence to meet his burden of proof for CAT relief. Watson also contends—for
the first time—that the IJ violated his due process rights by erroneously concluding
that his Florida convictions were categorically aggravated felonies under the INA.
The government responds, and we agree, that we lack jurisdiction to review either
argument. 1
INA § 242(a)(2)(C),
8 U.S.C. § 1252(a)(2)(C), commonly known as the
“criminal alien bar,” deprives us of jurisdiction to review Watson’s first argument.
Under the criminal alien bar, this Court lacks jurisdiction to review any final
removal order against an alien who, like Watson, “is removable by reason of
having committed” a controlled substance offense covered in
8 U.S.C.
§ 1227(a)(2)(B) or a firearm offense covered in § 1227(a)(2)(C). INA
§ 242(a)(2)(C),
8 U.S.C. § 1252(a)(2)(C) (cross-referencing INA § 237(a)(2)(B),
(C),
8 U.S.C. § 1227(a)(2)(B), (C)). Notwithstanding this jurisdictional bar, we
retain jurisdiction to review colorable constitutional claims and questions of law
raised in the petition for review. INA § 242(a)(2)(D),
8 U.S.C. § 1252(a)(2)(D);
Arias v. U.S. Att’y Gen.,
482 F.3d 1281, 1283-84 & n.2 (11th Cir. 2007).
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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).
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When a criminal alien like Watson “petitions for review of a removal order
denying his CAT claim, we may not review the administrative fact findings of the
IJ or the BIA as to the sufficiency of the alien’s evidence and the likelihood that
the alien will be tortured if returned to the country in question.” Singh v. U.S.
Att’y Gen.,
561 F.3d 1275, 1280 (11th Cir. 2009); see also Malu v. U.S. Att’y
Gen.,
764 F.3d 1282, 1289-90 (11th Cir. 2014). We retain jurisdiction, however,
over whether a set of undisputed facts amounts to torture, which is a legal question.
Singh,
561 F.3d at 1280.
Here, Watson’s petition challenges only the IJ’s fact findings. An IJ’s
credibility determination is a fact finding. See Ruiz v. U.S. Att’y Gen.,
440 F.3d
1247, 1254-55 (11th Cir. 2006) (explaining that factual determinations such as
credibility findings are reviewed under the substantial evidence test). Thus, to the
extent Watson challenges the IJ’s adverse credibility finding, we lack jurisdiction
to review that claim.
Watson also argues that the testimony he presented at his hearing—from
himself, his parents, and the mother of his two children—along with the country
conditions evidence was sufficient to show that it was more likely than not that he
would be tortured or killed in Jamaica because of his sexual orientation. We also
do not have jurisdiction to review this claim as to the sufficiency of the evidence.
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We also lack jurisdiction to review Watson’s second argument, but for a
different reason. Watson argues that the IJ erred in concluding that his prior
Florida convictions were categorically aggravated felonies, which amounted to a
violation of Watson’s due process rights. This issue raises both a legal question
and a constitutional claim that, if colorable, we would ordinarily retain jurisdiction
to review despite the criminal alien bar. In Watson’s case, however, we lack
jurisdiction to review Watson’s second argument because he failed to
administratively exhaust it before the BIA.
Under INA § 242(d)(1),
8 U.S.C. § 1252(d)(1), we lack jurisdiction to
review a claim if the petitioner has failed to exhaust it administratively by raising it
in his notice of appeal or appeal brief to the BIA. Amaya-Artunduaga v. U.S.
Att’y Gen.,
463 F.3d 1247, 1250-51 (11th Cir. 2006) (holding that this Court
lacked jurisdiction to consider an alien’s due process claim raised for the first time
in his petition for review). This jurisdictional requirement extends to due process
claims that are within the BIA’s purview to provide a remedy.
Id. at 1251; Sundar
v. INS,
328 F.3d 1320, 1325 (11th Cir. 2003). To properly exhaust a claim before
the BIA, the petitioner must do more than merely identify an issue to that body: a
petitioner has not exhausted a claim unless he “both raised the core issue before the
BIA . . . and also set forth any discrete arguments he relied on in support of his
claim.” Jeune v. U.S. Att’y Gen.,
810 F.3d 792, 800 (11th Cir. 2016).
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Watson’s counseled notice of appeal and brief filed with the BIA argued
only that the IJ erred in concluding he had not met his burden of showing he was
entitled to CAT protection. More importantly, Watson did not raise any due
process issues or challenge the IJ’s determination that his Florida convictions were
aggravated felonies and particularly serious crimes. In fact, consistent with his
statements before the IJ, Watson again conceded to the BIA that his convictions
qualified as such. Watson also noted that the only form of relief he sought was
CAT protection. Accordingly, we lack jurisdiction to review this unexhausted
claim as well.
PETITION DISMISSED.
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