UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ MAKSIM VLADIMIROVIC TIMOSHCHUK, a/k/a Mad Max, a/k/a Mad One, a/k/a Maksim Vladimar Timoshchuk, Petitioner,

v. JEFFERSON B. SESSIONS, III, United States Attorney General, Respondent. No. 17-9518 (Petition for Review)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before TYMKOVICH , Chief Judge, HARTZ and O’BRIEN , Circuit Judges.

________________ _________________ Maksim Timoshchuk, a native and citizen of Ukraine proceeding pro se, seeks review of the decision of the Board of Immigration Appeals (BIA) upholding an immigration judge’s (IJ) orde r denying his application fo r asylum, cancellation of removal, and protection under the Conventi on Against Torture (CAT). We dismiss the petition for review fo r lack of jurisdiction.

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### December 8, 2017 Elisabeth A. Shumaker Clerk of Court2 Timoshchuk was brought to the United St ates with his family in 2002 at the age of nine as a refugee. In 2005, he adjusted status to lawful permanent resident. In April 2015, he was convicted on guilty plea s in Colorado state court of forgery, in violation of Colo. Rev. St at. § 18-5-102(1)(e), and po ssession of methamphetamine and heroin, in violation of Colo. Rev. Stat. § 18-18-403.5(1) & (2)(a). He was sentenced to probation. In August 2015, his probation was revoked and he was sentenced to three years in prison. He wa s released after servi ng eleven months and was then taken into custody by Immigrat ion and Customs Enforcement (ICE). Timoshchuk conceded his removability a nd admitted his criminal convictions. He filed for asylum, withholding of re moval, and CAT prot ection. Applying 8 U.S.C. § 1158(b)(2)(A)(ii) & (B)(i), the IJ determined Timoshchuk was ineligible for asylum because he had been convicted of an aggravated felony—the Colorado forgery conviction. The IJ then addresse d Timoshchuk’s request for cancellation of removal and CAT protection. Although the IJ found his testimony credible, the IJ determined the events Timoshchuk and his fa mily had endured in Ukraine, allegedly due to their Pentecostal Chris tian faith, did not rise to the level of persecution. The IJ further determined Timosh chuk had not demonstrated a reasonable fear of future persecution based on his Penteco stal religious beliefs or hi s political opinion. The IJ then concluded Timoshchuk had not submitte d sufficient evidence to establish he was more likely than not to be tortured by the Ukrainian government, and therefore rejected the CAT claim. Ti moshchuk appealed to the BIA, arguing the IJ erred in finding he had not establishe d past persecution or a re asonable fear of future3 persecution based on his religio us beliefs. The BIA reviewed the IJ’s determinations on cancellation of removal and CAT prot ection, and dismissed the appeal. Timoshchuk now seeks review in this court. He as serts his convictions for possession of controlled substances under Colorado law did not preclude cancellation of removal because he did not “possess” th e drugs but, rather, c onsumed them due to his addiction. Similarly, he contends his Colorado forg ery conviction could not be used to deny him relief. “[W]e must first determ ine whether we have ju risdiction to consider [Timoshchuk’s] claims.” Sosa-Valenzuela v. Gonzales , 483 F.3d 1140, 1143 (10th Cir. 2007). We lack jurisdiction to review a fina l removal order “against an alien who is removable by reason of having committed a criminal offense covered in section . . . 1227(a)(2)(A)(iii), [o r] (B) . . . of this title.” 8 U.S.C. § 1252(a)(2)(C). 8 U.S.C. § 1227(a)(2)(A)(iii ) refers to aggravated felonies and applies to Timoshchuk’s forgery conviction. 8 U.S.C. § 1227(a)(2)(B), applies to controlled-substances convi ctions and applies to Timoshchuk’s drug-possession convictions. Although we lack jurisdiction to review the removal order, we do have jurisdiction over constitutional claims or questions of law, 8 U.S.C. § 1252(a)(2)(D); Alzainati v. Holder , 568 F.3d 844, 847 (10th Cir. 200 9). Therefore, § 1252(a)(2)(C) does not bar Timoshchuk’s claims of Colorado statutory construction. Even so, we lack jurisdic tion for another reason. Timoshchuk did not present these claims to the BIA. We do not have jurisdiction ov er claims unless “the alien has exhausted all administrative reme dies available as of right.” Torres de la Cruz v.4 Maurer , 483 F.3d 1013, 1017 (10th Cir. 2007) (ellipsis and internal quotation marks omitted); see also 8 U.S.C. § 1252(d)(1). Moreove r, the alien “must present the same specific legal theory to the BIA before he or sh e may advance it in court.” Garcia-Carbajal v. Holder , 625 F.3d 1233, 1237 (10th Cir. 2010). We thus lack jurisdiction over Timoshchuk’s argument a sserting his Colorado convictions do not preclude the relief of cancel lation of removal. In his appellate reply brief, Timosh chuk presents additional constitutional arguments, asserting claims based on equa l protection, double jeopardy, cruel and unusual punishment, and due process. Again, Timosh chuk did not raise these arguments to the BIA so we lack jurisdiction to consider them. Torres , 483 F.3d at 1017. We also lack jurisdiction to addr ess Timoshchuk’s appellate arguments claiming the IJ and the BIA er red in holding he did not me et his burden of proof to show entitlement to cancellation of removal or CAT protection, and his status as a “refugee” precludes removal. These arguments do not qua lify as constitutional or legal claims triggering our ju risdiction under § 1252(a)(2)(D ). Not all legal issues qualify; only “issues regarding st atutory construction” do so. Shepherd v. Holder , 678 F.3d 1171, 1179 (10th Ci r. 2012) (internal quota tion marks omitted). Finally, Timoshchuk claims his dete ntion by ICE “violated expedited removal.” Aplt. Op. Br. at 8. The reco rd does not include an expedited removal order. He apparently argue s he was wrongfully held in ICE custody after he was ordered removed. But not only did the IJ inform him he could waive his appeal from5 the IJ’s decision and be removed forthwith, he filed a request for a stay of removal pending appeal, which this court denied. These circumstances indicate he did not want to be removed to Ukraine immediatel y. And even if Timoshchuk had a claim based on ICE detention, he di d not present it to the BIA, so we lack jurisdiction. Torres , 483 F.3d at 1017-18. The petition for review is DISMISSED for lack of jurisdicti on. Timoshchuk’s request to proceed on appeal in forma pauperis is DENIED AS MOOT. Since we have addressed his petition for review, prepayment of fees is no longer an issue. The relevant statute, 28 U.S.C. § 1915(a), does not permit litig ants to avoid payment of fees; only prepayment of fees is excused. Accordingly, Timoshchuk is required to pay all fees ($500). Payment must be made to the Clerk of this Court. See Fed. R. App. P. 15(e).

Entered for the Court

Terrence L. O’Brien Circuit Judge