[DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                               FEBRUARY 7, 2007
                           Nos. 05-16744; 06-11377             THOMAS K. KAHN
                           Non-Argument Calendar                   CLERK
                         ________________________

                            BIA No. A37-591-546

GLEN NAZIM KHAN,


                                                                Petitioner,

                                    versus

U.S. ATTORNEY GENERAL,

                                                                Respondent.


                         ________________________

                   Petitions for Review of a Decision of the
                         Board of Immigration Appeals
                        _________________________

                              (February 7, 2007)

Before BLACK, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

     Glen Nazim Khan, a native and a citizen of Trinidad and Tobago, petitions
this Court for review of two decisions of the Board of Immigration Appeals

(“BIA”). Khan appeals the BIA’s decision to deny his request for a waiver of

inadmissibility and order of removal. Khan also appeals the BIA’s decision to

deny his motion for reconsideration, and Khan’s appeal from this decision has been

consolidated with his original petition for review.

                                      BACKGROUND

       Khan was admitted to the United States as an immigrant on January 7, 1982.

On August 26, 1991, Khan pled guilty and was convicted of manslaughter with a

deadly weapon - a pistol, for which he received a term of imprisonment of fifteen

years followed by five years probation. The Immigration and Naturalization

Service (“INS”), now the Department of Homeland Security (“DHS”), issued Khan

a Notice to Appear, charging him with removal for having been convicted of an

aggravated felony, at any time after admission, in violation of INA

§ 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), and for, at any time after

admission, having been convicted “under any law of purchasing, selling, offering

for sale, exchanging, using, owning, possessing, or carrying a firearm,” in violation

of INA § 237(a)(2)(C), 8 U.S.C. § 1227(a)(2)(C). Khan filed for a waiver of

inadmissibility pursuant to former section INA § 212(c), 8 U.S.C. § 1182(c).1

       1
        Under INA § 212(c), the Attorney General, or one of his representatives, could waive
the deportation of an admittedly deportable alien based upon various equitable considerations.
See 8 U.S.C. § 1182(c) (repealed 1996) (requiring that the alien be a lawful permanent resident
                                                 2
       At his initial hearing, the Immigration Judge (“IJ”) asked Khan if he had

“ever been convicted . . . of manslaughter with a deadly weapon in case number

912404." Khan replied that “[w]ith all due respect, I think if I answer, I’ll be a

witness against myself.” The government informed the IJ that the court had

certified copies of the conviction. At a later hearing on his application for a

waiver, Khan testified extensively to the details surrounding his arrest for second

degree murder and ultimate guilty plea to manslaughter with a deadly weapon.

The IJ found Khan subject to removal from the United States and denied Khan a

waiver of inadmissibility based on the IJ’s discretion after balancing the equities of

the facts in Khan’s case. The BIA adopted the IJ’s decision and affirmed. Khan

filed a petition for review in this Court and also filed a motion to reconsider with

the BIA. Khan argues that the BIA committed reversible error by failing to both

properly analyze the equities in his case and explain why the equities in his favor

were not considered unusual or outstanding. Khan also argues that the BIA

committed reversible error by improperly imposing a requirement that Khan waive


and have domiciled in the United States for seven continuous years to be eligible for a
discretionary waiver).
        In INS v. St. Cyr, 

, 326, 

, 2293, 

(2001), the
United States Supreme Court held that even though § 212(c) had been repealed by the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), relief remained
available to aliens “whose convictions were obtained through plea agreements and who,
notwithstanding those convictions, would have been eligible for 212(c) relief at the time of their
plea under the law then in effect.” As Khan pled guilty to manslaughter with a deadly weapon in
1991 and served less than five years in prison, he was eligible for relief under the former §
212(c). See Del Pilar v. U.S. Att’y Gen., 

, 1156 n.1 (11th Cir. 2003) (per curiam).
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his right to remain silent under the Fifth Amendment in order to obtain

discretionary relief under § 212(c). Khan raises no arguments in his brief as to the

BIA’s denial of his motion for reconsideration. Accordingly, he has abandoned

any arguments on this issue. Sepulveda v. U.S. Att’y Gen., 

, 1228-29

n.2 (11th Cir. 2005) (per curiam) (stating that when an appellant fails to raise an

argument on an issue, that issue is deemed abandoned).

                                  JURISDICTION

      Before reaching the merits of Khan’s petition, we must first consider

whether we have subject matter jurisdiction. “We review subject matter

jurisdiction de novo.” Garcia v. Att’y Gen., 

, 1220 (11th Cir. 2001)

(per curiam). Under the Immigration and Nationality Act, we lack jurisdiction to

review the final removal order of an alien who is removable for having committed

an aggravated felony. See INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C); INA §

237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii). The term “aggravated felony”

includes “a crime of violence . . . for which the term of imprisonment [is] at least

one year.” INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F). Our jurisdiction is

limited only to the threshold issues of whether Khan is “(1) an alien (2) who is

removable (3) because he committed a criminal offense enumerated in the statute.”

Resendiz-Alcaraz v. U.S. Att’y Gen., 

, 1266 (11th Cir. 2004). If

these conditions are met, we are divested of jurisdiction to review the deportation
                                           4
order. See Tovar-Alvarez v. Att’y Gen., 

, 1352 (11th Cir. 2005) (per

curiam).

      Khan was ordered removed based on his aggravated felony conviction.

Khan does not challenge that he is removable based on his conviction. Khan

challenges the order based on the discretion afforded the BIA in considering

whether an alien is eligible for relief from deportation under § 212(c). We do not

have jurisdiction over “any other decision or action of the Attorney General or the

Secretary of Homeland Security the authority for which is specified . . . to be in the

discretion of the Attorney General or Secretary of Homeland Security. . . .” INA

§ 242(a)(2)(B)(ii), 8 U.S.C. § 1252(a)(2)(B)(ii). Relief from removal pursuant to

the former INA § 212(c) is discretionary. 8 U.S.C. § 1182 (repealed 1996).

Therefore, we lack jurisdiction over this part of Khan’s appeal.

      However, Khan alleges that the BIA violated his Fifth Amendment right

against self-incrimination. We retain jurisdiction to review substantial

constitutional claims or questions of law arising out of removal proceedings. See

INA § 242(a)(2)(D), 8 U.S.C. § 1252 (a)(2)(D); Farquharson v. U.S. Att’y Gen.,

, 1322 (11th Cir. 2001).

                 SUBSTANTIAL CONSTITUTIONAL ISSUES

      Khan argues that the IJ and the BIA constitutionally erred by requiring that

Khan waive his Fifth Amendment right against self-incrimination before he could
                                           5
argue for relief under § 212(c). At his initial hearing, the IJ asked Khan if he had

even been convicted of manslaughter, and Khan chose not to answer. The IJ

ultimately sustained Khan’s judgment and conviction for manslaughter based on

the admission of certified copies of the judgment. In seeking a waiver pursuant to

§ 212(c), Khan discussed, at length, the details surrounding the incident that led to

his plea and conviction. Khan first raised his Fifth Amendment claim in this

petition for review. We have interpreted the exhaustion requirement of INA §

242(d)(1), 8 U.S.C. § 1252(d)(1), to preclude jurisdiction over claims that have not

been raised before the BIA. Sundar v. INS, 

, 1323-25 (11th Cir.

2003). Constitutional challenges, and some due process challenges, do not require

exhaustion because the BIA does not have the authority to adjudicate those claims.

However, where the BIA can provide a remedy to the constitutional

claim, “the exhaustion requirement applies with full force.” 

had raised

the issue before the BIA, it would have been within the authority of the BIA to

determine whether the IJ had required Khan to waive his right against self-

incrimination before allowing Khan to proceed with his waiver argument.

Furthermore, the BIA would also have had the authority to determine whether the

IJ impermissibly placed excessive weight on Khan’s silence relative to the

testimony and evidence he provided. Since Khan did not allege that the IJ violated

his Fifth Amendment rights as part of his appeal before the BIA, we dismiss his
                                          6
petition for failure to exhaust his administrative remedies.2

         Even if Khan had not failed to exhaust his administrative remedies, his Fifth

Amendment claim is without merit. There is no evidence the IJ or BIA required

that Khan waive his right against self-incrimination before allowing him to argue

for a waiver of inadmissability. The record shows that the IJ and the BIA had

extensive testimony and evidentiary submissions with which to conclude that the

reasons for removing Khan outweighed the equities in favor of him remaining in

the country. Therefore, Khan has failed to raise a substantial constitutional

argument that affects our limited jurisdiction to review the BIA’s deportation

order.

         Accordingly, the petition is dismissed.

         PETITION DISMISSED.




         2
           In his reply brief, Khan argues that he has raised a substantial question of law, which is
whether the IJ impermissibly used Khan’s decision to remain silent as the major reason for
denying his waiver of inadmissibility and ordering his removal. This argument is without merit.
First, the invocation of a person’s Fifth Amendment right against self-incrimination in a removal
proceeding may be the basis of an adverse inference. INS v. Lopez-Mendoza, 

,
1043-44, 

, 3486, 

(1984). Second, even if the IJ did make an
adverse inference against Khan for his initial choice to remain silent, there is no evidence that
this was the major reason for denying his waiver of inadmissability and ordering his removal.
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