Simonovskiy v. Ashcroft

71 F. App'x 620

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 18, 2003
• Docket: No. 02-70498; I & NS No. A71-309-971
• Status: Published

Opinion

MEMORANDUM

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Maksim Simonovskiy seeks review of an order of removal. We dismiss for failure to exhaust administrative remedies.

Simonovskiy argues that the removal proceedings below were procedurally flawed because the immigration judge (IJ) did not have authority to conduct removal proceedings, given that there had been no prior termination of his refugee status under section 207(c)(4) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1157(c)(4), and given that there had been no prior “inspection and examination” proceeding under section 209(a) of the INA, 8 U.S.C. § 1159(a). As to section 207(c)(4), this argument was not raised below. As to section 209(a), not only was this argument not made below, but, at the behest of the IJ, counsel for Simonovskiy stated on the record that he was not making such an objection.

Simonovskiy also argues that the IJ employed an incorrect legal standard in denying his request for a “refugee waiver” under section 209(c), 8 U.S.C. § 1159(c). He argues that the IJ should not have used the standard set forth in Matter of Marin, 16 I. & N. Dec. 581 (BIA 1978). Again, he did not raise this issue below. The immigration judge announced without objection that he was relying on the Marin standard, and in his appeal to the BIA, Simonovskiy not only did not complain about the use of this standard, but reurged it.

“A court may review a final order of removal only if ... the alien has exhausted all administrative remedies available to the alien as of right....” 8 U.S.C. § 1252(d). “Failure to raise an issue below constitutes failure to exhaust administrative remedies and deprives this court of jurisdiction to hear the matter.” Farhoud v. INS, 122 F.3d 794, 796 (9th Cir.1997) (internal citation and quotation marks omitted).

PETITION DISMISSED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9ih Cir. R. 36-3.