USCA11 Case: 20-14861 Document: 83-1 Date Filed: 04/20/2023 Page: 1 of 4
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14861
Non-Argument Calendar
____________________
DIMITAR PETLECHKOV,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A216-634-377
____________________
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2 Opinion of the Court 20-14861
Before ROSENBAUM, JILL PRYOR, and GRANT, Circuit Judges.
PER CURIAM:
Dimitar Petlechkov, proceeding pro se, seeks review of an
order issued by the Department of Homeland Security for his ex-
pedited removal from the United States as an alien convicted of an
aggravated felony. See
8 U.S.C. §§ 1228; 1227(a)(2)(A)(iii). Petle-
chkov contends that the Department violated his Fifth Amend-
ment due process rights by failing to provide notice of the charge
of removability and an opportunity to respond. Specifically, he al-
leges that the “Notice of Intent to Issue a Final Administrative Re-
moval Order” contained in the administrative record was never
served on him, contrary to the signed (but unsworn) certificate of
service on the document. He argues that even if the Notice had
been served on him, he would not have been able to respond be-
cause it did not provide a return address. And he argues that if he
had been given the opportunity to respond, he would have shown
(among other things) that the restitution order relied on by the De-
partment was “insufficient as a matter of law” to establish that his
mail-fraud conviction involved the amount of loss necessary to
qualify as an “aggravated felony” under
8 U.S.C.
§ 1227(a)(2)(A)(iii). Obasohan v. U.S. Att’y Gen.,
479 F.3d 785, 791
(11th Cir. 2007), abrogated on other grounds by Nijhawan v.
Holder,
557 U.S. 29 (2009). He asks this Court to (1) vacate the
order of removal and (2) direct the Department to compensate him
USCA11 Case: 20-14861 Document: 83-1 Date Filed: 04/20/2023 Page: 3 of 4
20-14861 Opinion of the Court 3
in various ways for the time he spent in Department custody before
his removal.
We lack jurisdiction to review “any final order of removal
against an alien who is removable by reason of having committed”
an aggravated felony, except to the extent that the petitioner raises
constitutional claims or questions of law.
8 U.S.C. § 1252(a)(2)(C)–
(D). Our jurisdiction is further limited to those claims for which
the petitioner “has exhausted all administrative remedies available
to the alien as of right.”
Id. § 1252(d)(1); see Amaya-Artunduaga v.
U.S. Att’y Gen.,
463 F.3d 1247, 1250 (11th Cir. 2006).
Our jurisdiction to review the claims raised in Petlechkov’s
petition turns in part on whether he was, in fact, served with the
Notice of Intent and given a reasonable opportunity to respond to
it. If so, we lack jurisdiction to review Petlechkov’s claims because
he failed to raise any of them before the agency during his expe-
dited removal proceedings. See Malu v. U.S. Att’y Gen.,
764 F.3d
1282, 1287–88 (11th Cir. 2014). If not, agency review arguably was
not an “available” administrative remedy for Petlechkov. The
question would then become whether the evidence that Petle-
chkov now seeks to present from his criminal proceedings would
have been sufficient to rebut the agency’s allegation that his mail-
fraud offense involved “fraud or deceit in which the loss to the vic-
tim or victims exceeds $10,000.”
8 U.S.C. § 1101(a)(43)(M) (defin-
ing the term “aggravated felony”).
We decline to decide either question in the first instance.
Petlechkov claims that he informed the Department in writing—
USCA11 Case: 20-14861 Document: 83-1 Date Filed: 04/20/2023 Page: 4 of 4
4 Opinion of the Court 20-14861
by mail and by service in a related habeas corpus proceeding—that
he had not been served with notice before the Department issued
its final order of removal. But those documents are not contained
in the administrative record. Nor does the record contain any find-
ings by the Department as to whether Petlechkov was served with
the Notice of Intent in compliance with agency regulations. See
8
C.F.R. § 238.1(b). As a court of review, we are not in a position to
make such findings ourselves. See Gonzales v. Thomas,
547 U.S.
183, 185–86 (2006). “Rather, ‘the proper course, except in rare cir-
cumstances, is to remand to the agency for additional investigation
or explanation.’”
Id. at 186 (quoting I.N.S. v. Orlando Ventura,
537
U.S. 12, 16 (2002)).
We therefore remand to the Department for a determina-
tion as to whether the Notice of Intent was personally served on
Petlechkov, and if so, whether the Notice afforded him a reasona-
ble opportunity to respond and contest the charge of removability.
If the Department concludes on remand that Petlechkov did not
receive notice or have a meaningful opportunity to respond, it
should then consider his arguments concerning his removability.
We DENY Petlechkov’s motion for the Court to take judi-
cial notice of docket entries in his federal criminal proceeding be-
cause we do not reach the argument to which those entries are rel-
evant. We also DENY his motion to supplement the record be-
cause we are limited by statute to consideration of the administra-
tive record. See
8 U.S.C. § 1252(b)(4).
PETITION REMANDED.
