text:                                                                                                                            Opinions of the United
  2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                                for the Third Circuit
  
  
  1-24-2008
  
  Allicock v. Atty Gen USA
  Precedential or Non-Precedential: Non-Precedential
  
  Docket No. 07-1679
  
  
  
  
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  Recommended Citation
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  http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1707
  
  
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                                                  NOT PRECEDENTIAL
  
          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT
  
  
  
                        No. 07-1679
                        _________
  
              HERBERT LEVON ALLICOCK,
  
                                         Petitioner
                              v.
  
      ATTORNEY GENERAL OF THE UNITED STATES,
  
                                         Respondent
  
               __________________________
  
          On Petition for Review of an Order of the
               Board of Immigration Appeals
                (Agency No. A42 672 979)
           Immigration Judge: Alberto Riefkohl
             ___________________________
  
          Submitted under Third Circuit LAR 34.1(a)
                     September 25, 2007
  
  
  Before: BARRY, CHAGARES AND ROTH, CIRCUIT JUDGES
  
               (Opinion filed January 24, 2008)
  
  
                       ____________
  
                       OPINION
                       ____________
  PER CURIAM
  
         Herbert Levon Allicock petitions for review of an order of the Board of Immigration
  
  Appeals (BIA), dismissing his appeal from the final removal order of an Immigration Judge
  
  (IJ). We will deny the petition.
  
         Allicock, a native and citizen of Guyana, entered the United States as an immigrant
  
  in 1990. In 2002, he was convicted of possession with intent to distribute over 25 pounds
  
  of marijuana in violation of New Jersey Statutes Annotated (N.J. Stat. Ann.) § 2C:35-5a(1)
  
  and b(10); and of eluding a police officer in violation of N.J. Stat. Ann. § 2C:29-2b. As a
  
  result of the convictions, Allicock was served with a Notice to Appear, charging him with
  
  being removable for having committed an aggravated felony as defined in the Immigration
  
  and Nationality Act (INA) § 101(a)(43)(B) (illicit trafficking in a controlled substance); for
  
  having committed a controlled substance violation; and for having committed an aggravated
  
  felony as defined in INA § 101(a)(43)(F) (crime of violence).
  
         Allicock, proceeding without an attorney, conceded that he had been convicted as
  
  charged, but argued that his “eluding” conviction did not constitute a crime of violence, and
  
  that his convictions were not final.1 The IJ determined that his convictions were final, and
  
  denied Allicock’s motion to terminate proceedings. A.R. 115. On appeal to the BIA,
  
  
  
     1
      Allicock also applied for asylum and protection under the Convention Against Torture
  (CAT). The Immigration Judge (IJ) found that he was not eligible for asylum because of his
  conviction, and found that he had not shown that he was likely to be tortured in Guyana.
  Allicock did not appeal those determinations to the BIA and does not raise issues regarding
  asylum or CAT relief here.
  
                                                2
  Allicock again argued that his “eluding” conviction did not constitute a crime of violence,
  
  and that his convictions were not final. The BIA held that the IJ did not find him removable
  
  on the basis of the “eluding” conviction,2 but only on the basis of his controlled substance
  
  violation, agreed that his convictions were final, and agreed that he was removable on the
  
  basis of his controlled substance violation.
  
             In his brief, Allicock raises two issues: (1) that his controlled substance violation is
  
  not an aggravated felony, and (2) that the IJ prejudged his case. As the Government notes,
  
  pursuant to 8 U.S.C. § 1252(d)(1), this Court may only review a final order of removal if
  
  “the alien has exhausted all administrative remedies available to the alien as of right.”
  
  Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003) (alien is required to raise and
  
  exhaust remedies as to each claim or ground for relief to preserve right of judicial review).
  
  Allicock did not present either of the two issues listed above at any level of the
  
  administrative proceedings. Thus, we are without jurisdiction to review his claims.3
  
             For the foregoing reasons, we will deny the petition.
  
  
         2
        We agree with the Government that this holding is puzzling, but because the BIA
  considered only Allicock’s controlled substance violation in considering whether he was
  removable, the issue of whether Allicock’s “eluding” conviction constitutes a crime of
  violence is moot.
     3
       If we had jurisdiction to consider the issue, we would find that Allicock’s controlled
  substance conviction is an aggravated felony, as it would be punishable as a felony under the
  Controlled Substances Act. See 21 U.S.C. § 841(b)(1)(D); Wilson v. Ashcroft, 350 F.3d 377,
  381 (3d Cir. 2003). The exception found at § 841(b)(4), which provides that “distributing
  a small amount of marihuana for no remuneration” is punishable as a misdemeanor, is not
  applicable, as 25 pounds of marijuana is not, under any interpretation, a “small amount” of
  marijuana.
  
                                                    3
  