Gilani v. Gonzales , 206 F. App'x 381 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 21, 2006
Charles R. Fulbruge III
Clerk
No. 05-60328
Summary Calendar
NAVEED GILANI,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A95 319 896
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Before REAVLEY, WIENER and DENNIS, Circuit Judges.
PER CURIAM:*
Naveed Gilani, a native and citizen of Pakistan, petitions
this court for review of the Board of Immigration Appeals’ (BIA)
decision affirming the Immigration Judge’s (IJ) order of removal.
For the first time in his petition for review, Gilani contends
that he was denied procedural due process because the Notice to
Appear did not specify the time and place at which his removal
hearing would occur as required by 8 U.S.C. § 1229(a)(1)(G)(i).
He also contends that, without a specified time and place, the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 05-60328
-2-
Notice to Appear was jurisdictionally defective and the defect
was nonwaivable.
Because Gilani failed to raise these issues before the BIA,
this court lacks jurisdiction to consider them. See Wang v.
Ashcroft, 260 F.3d 448, 452-53 (5th Cir. 2001). Further, because
Gilani did not contest his removability before the IJ, he may not
argue now that the IJ lacked jurisdiction over the removal
proceedings. See Sohani v. Gonzales, No. 05-60435, 2006 WL
2004985 at *1 (5th Cir. July 13, 2006) (citing Qureshi v.
Gonzales, 442 F.3d 985, 990 (7th Cir. 2006)).
For the first time in his petition for review, Gilani also
contends that the National Security Entrance/Exit Registration
Statute (NSEERS) violates the First, Fourth, and Fifth
Amendments. Specifically, he argues that NSEERS’s requirement
that aliens from certain countries register with the Government,
in effect, discriminates on the basis of religion because most
registrants from those countries are Muslim and this alleged
discriminatory process results in the removal of those persons
from the United States. Gilani also argues that his deportation
is an illegal apprehension that is unfair because it resulted
from his registration under NSEERS. Because the BIA does not
have jurisdiction to decide the constitutionality of acts of
Congress, exhaustion is not required. See Nehme v. INS, 252 F.3d
415, 421 (5th Cir. 2001).
No. 05-60328
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This court and others have repeatedly upheld NSEERS’s
nationality classification against constitutional attack. See
Ali v. Gonzales, 440 F.3d 678, 681 n.4 (5th Cir. 2006); Ahmed v.
Gonzales, 447 F.3d 433, 439 (5th Cir. 2006). Further, Gilani
was found removable after he conceded that he violated the
immigration laws of the United States and not because of his
registration under NSEERS. Therefore, Gilani’s constitutional
challenge to NSEERS does not provide a valid basis for granting
his petition for review. See Ahmed, 447 F.3d at 439-40.
Finally, Gilani does not address either of the claims raised
before the BIA, namely, that the Notice to Appear was
improvidently issued because it was not signed by an authorized
person or that the IJ erred in denying his motion for voluntary
departure. Therefore, these claims are deemed abandoned. See
Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003).
Accordingly, Gilani’s petition for review is DENIED.