*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 13 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

FENG HSIN CHEN, Petitioner-Appellant,

v. JOHN ASHCROFT, United States Attorney General; LUIS GARCIA, District Director, El Paso District, Immigration and Nationalization Service, Respondents-Appellees. No. 03-2078 (D. N.M.) (D.Ct. No. 02-CV-434-MV/LFG)

ORDER AND JUDGMENT *

Before TACHA , Chief Circuit Judge, PORFILIO , and BRORBY , Senior Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9(G). The case is1 Because Mr. Chen is subject to a federal deportation order and is considered in

Immigration and Naturalization Service custody, see Aguilera v. Kirkpatrick, 241 F.3d 1286, 1291-92 (10th Cir. 2001), a certificate of appealability is not required to appeal the district court’s denial of his § 2241 habeas petition. See id. at 1292; Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996).

-2- therefore ordered submitted without oral argument.

Appellant Feng Hsin Chen, a citizen of Taiwan repre sented by counsel, appeals the denial of his petition for a writ of ha beas corpus filed pursuant to 28 U.S.C. § 2241. 1 We affirm the district court’s decision.

Mr. Chen is a native and citizen of Taiwan who ente red the United States in 1982, at the age of twenty-three, as a lawful perma nent resident. On September 25, 1995, after pleading guilty, a Georgia state di strict court convicted Mr. Chen of possession and sale of marijuana, possession of marijuana with intent to distribute, and possession of a firearm during the commission of a crime. Mr. Chen received a sentence of fifteen years imprisonm ent, of which the state court suspended thirteen years.

On September 4, 1998, the Immigration and Naturaliz ation Service instituted removal proceedings against Mr. Chen; onApril 15, 1999, the2This section is currently codified at 8 U.S.C. § 1227(a)(2)(B)(i) (2003). During

the period Mr. Chen pled guilty, it was codified at 8 U.S.C. § 1251(a)(2)(B)(i) (1995).

3 This section is currently codified at 8 U.S.C. § 1227(a)(2)(A)(iii) (2003). During the period Mr. Chen pled guilty, it was codified at 8 U.S.C. § 1251(a)(2)(A)(iii) (1995).

4This section is currently codified at 8 U.S.C. § 1227(a)(2)(C) (2003). During the period Mr. Chen pled guilty, it was codified at 8 U.S.C. § 1251(a)(2)(C) (1995).

-3- Immigration Court entered an order of removal pursu ant to § 237(a)(2)(B)(i) 2 and § 237(a)(2)(A)(iii) 3 of the Immigration and Nationality Act of 1990, Pu b. L. No. 101-649, 104 Stat. 4978. On February 16, 2001, the Board of Immigration Appeals affirmed the order of removal, noting Mr. C hen’s deportation was also based on § 237(a)(2)(c) 4 for his firearm conviction.

Mr. Chen filed his § 2241 petition requesting relie f in the New Mexico federal district court. In his petition, Mr. Chen claimed the Immigration Court erred in ruling him ineligible for a discretionary waiver under § 212(c) of the Immigration and Naturalization Act, previously codi fied at 8 U.S.C. § 1182(c) (1995). In his petition, Mr. Chen did not raise an international law argument, but in a subsequent pleading, Mr. Chen claimed the Immi gration Court erred in not allowing him an opportunity to advance an argument that his deportation would violate certain immigration treaties.-4-

The New Mexico federal district court referred Mr. Chen’s petition to a magistrate judge who issued a “Magistrate Judge’s F indings and Recommended Disposition” (Recommendation), in which the magistr ate judge recommended denying the petition and dismissing Mr. Chen’s acti on with prejudice. In so doing, the magistrate judge found Mr. Chen is a “re movable alien,” convicted of the aggravated felony of possession of a firearm in the commission of a crime. He noted Mr. Chen’s guilty plea and conviction pred ated the passage of the AntiTerrorism and Effective Death Penalty Act and the I mmigration Reform and Immigrant Responsibility Act, which repealed § 212( c) (codified at 8 U.S.C. § 1182(c)) – a provision giving the Attorney Genera l the ability to provide discretionary relief to aliens facing deportation. Because Mr. Chen’s guilty plea preceded those Acts, the magistrate judge determine d neither Act applied retroactively to Mr. Chen, and, therefore, a discre tionary waiver of deportation under § 212(c) (8 U.S.C. § 1182(c)) existed at the time Mr. Chen pled guilty. However, the magistrate judge found Mr. Chen inelig ible for discretionary relief because he received a firearms conviction, which wo uld render him ineligible for discretionary relief before or after enactment of e ither Act.

As to the application of international treaties, th e magistrate judge determined the immigration judge allowed Mr. Chen t o advance his international-5-

law argument and, therefore, rejected the argument as grounds for habeas relief. In his objections to the Recommendation, Mr. Chen a dvanced a different argument, claiming the immigration judge did allow him to advance his international law argument, but improperly failed t o consider it. In support of his international law claim and in reviewing the magist rate judge’s Recommendation, Mr. Chen directed the district court to consider th e Universal Declaration of Human Rights and the International Covenant of Civi l and Political Rights.

After reviewing Mr. Chen’s objections, the districtcourt entered both an “Order” and Judgment adopting the magistrate judge’ s Recommendation. In denying Mr. Chen’s § 2241 petition and dismissing the action with prejudice, the district court determined “the bedrock basis for th e [Recommendation] was the fact that [Mr. Chen’s] firearms conviction preclude d any review under § 212(c).” Relying on Hain v. Gibson , 287 F.3d 1224, 1243 (10th Cir. 2002), cert. denied, 537 U.S. 1173 (2003), the district court also concl uded the International Covenant on Civil and Political Rights did not override or s upercede federal statutory immigration law because Congress never enacted impl ementing legislation for that treaty.

On appeal, Mr. Chen raises the following issue:-6-

Whether a lawful permanent resident alien can be re moved from the United States if convicted of a firearms offense un der 8 U.S.C. § 237(a)(2)(C), without a consideration of discreti onary relief under Section 212(c) of the INA (previously at 8 U.S.C. § 1192(c)) even though various international treaty and covenant ob ligations of the United States and other international practice may be interpreted to require consideration of discretionary relief. In raising this issue, Mr. Chen claims the districtcourt erred in determining the International Covenant on Civil and Political Right s was “not self-executing,” and by failing to address his international law argumen t based on the Universal Declaration of Human Rights, the European Conventio n on Human Rights, the American Declaration of Rights and Duties of Man, a nd the American Convention on Human Rights.

We review the district court’s dismissal of a habea s corpus petition de

novo . See Bradshaw , 86 F.3d at 166. We may affirm a district court’s decision denying a § 2241 petition on any grounds supported by the record. See Aguilera , 241 F.3d at 1290.

In this case, the facts and applicable law are stra ightforward and support the district court’s decision. In 1995, Mr. Chen p led guilty and was convicted in Georgia state court for possession and sale of mari juana and possession of marijuana with intent to distribute, under Ga. Code Ann. § 16-13-30 (1995), and5While the record does not indicate the Georgia state statute under which Mr.

Chen was convicted for possession of a firearm during the commission of a crime, it is clear Ga. Code Ann. § 16-11-106 (1995) is the applicable statute. See, e.g., Wallace v. State , 455 S.E.2d 615, 616 (Ga. Ct. App. 1995) (noting conviction for possession of a firearm during the commission of a crime falls under § 16-11-106); Waye v. State , 464 S.E.2d 19, 22 (Ga. Ct. App. 1995) (same).

-7- possession of a firearm during the commission of a crime, under Ga. Code Ann. § 16-11-106 (1995). 5 Under the federal statutory provisions in place at the time of Mr. Chen’s guilty plea, an alien convicted of po ssession of a weapon in violation of any law was clearly deportable. See 8 U.S.C. § 1251(a)(2)(C) (1995). Moreover, § 212(c) – the discretionary waiver provi sion in effect at that time – clearly states the Attorney General’s authority to exercise discretion “shall not apply to an alien convicted of one or more aggravat ed felonies.” See 8 U.S.C. § 1182(c) (1995). It is well established that at t he time of Mr. Chen’s guilty plea and conviction, the discretionary waiver did not ap ply to aliens convicted of a firearms violation, including state firearms convic tions. See Gjonaj v. INS, 47 F.3d 824, 827 (6th Cir. 1995) (state conviction); Rodriguez v. INS, 9 F.3d 408, 413 (5th Cir. 1993) (state conviction); Campos v. INS, 961 F.2d 309, 314-15 (1st Cir. 1992) (state conviction); Cabasug v. INS, 847 F.2d 1321, 1325 (9th Cir. 1988) (state conviction). As a result, in reviewin g the statutes applicable at the time of Mr. Chen’s guilty plea and conviction, as w ell as current statutes, it is clear he was then, and is now, ineligible for a dis cretionary waiver of his6Although Mr. Chen claims he also based his international law argument to the

Immigration Court on the European Convention on Human Rights, the record provided does not support his contention.

-8- deportation order.

With respect to his international argument, we note the district court correctly relied on this court’s decision in Hain , 287 F.3d at 1243, by concluding the International Covenant on Civil and Political R ights did not override nor supercede federal statutory immigration law because Congress never enacted implementing legislation for that treaty. Admitted ly, the district court did not address Mr. Chen’s additional argument his deportat ion is illegal under the Universal Declaration of Human Rights, which he als o raised in his objections to the magistrate judge’s Recommendation and before th e Immigration Court. 6 We conclude the district court did not err in failing to address this or the other documents relied on by Mr. Chen, based on the groun ds provided below.

We begin by noting that even if Mr. Chen raised his international law argument before the Immigration Court, nothing in t he record establishes he raised it before the Board of Immigration Appeals, including the board’s decision which makes no reference to any such argument. We have held “[t]he failure to-9-

raise an issue on appeal to the Board [of Immigrati on Appeals] constitutes failure to exhaust administrative remedies ... and deprives the Court of Appeals of jurisdiction to hear the matter.” Rivera-Zurita v. INS, 946 F.2d 118, 120 n.2 (10th Cir. 1991).

Moreover, Mr. Chen did not make his international l aw argument in his § 2241 petition, and only advanced it before the ma gistrate judge in one of his response pleadings, in the following cursory paragr aph: Petitioner would also advance other international l aw arguments, including but not limited to, provisions in the Ame rican Declaration of Rights and Duties of Man, Chapter 1, Article II (right to equality before the law) and Article XVIII (right to a fair trial), the American Declaration on Human Rights, Article VII, and the A merican Convention on Human Rights, Article XXII. While ad mittedly persuasive in nature only, Petitioner would also ad vance international law arguments base[d] on European Convention on Hum an Rights, Article 3, which recognizes that the length of resi dence in the country increases the weight of an alien’s right to stay. Despite the numerous documents relied on in this paragraph, in his objections to the Recommendation, Mr. Chen relied only on the Uni versal Declaration of Human Rights and the International Covenant of Civi l and Political Rights to advance his international law argument.

It is clear Mr. Chen provided the magistrate judge and district court a perfunctory, secondary international-law argument n ot raised in his petition,-10-

which he only developed during the course of litigation. On appeal, the entirety of his appeal brief focuses only on an internationa l-law argument – not the issues raised in his petition. In the past, we have concl uded such an undeveloped and secondary argument is insufficient to preserve an a rgument on appeal. Cf. TeleCommunications, Inc. v. Comm’r of Internal Revenue , 104 F.3d 1229, 1233-34 (10th Cir. 1997).

However, even if Mr. Chen did exhaust his internati onal law argument and we deemed it sufficiently preserved for appeal, we find his argument nevertheless lacks merit because this court is not bound by the documents on which he relies. The United States has not ratified the American Con vention on Human Rights, opened for signature December 19, 1966, and, theref ore, we are not bound by it. See Flores v. S. Peru Copper Corp. , 343 F.3d 140, 162-64 (2d Cir. 2003). Similarly, the Universal Declaration of Human Right s is merely a resolution of the United Nations, and the American Declaration of the Rights and Duties of Man and American Declaration of Human Rights are si mply multinational declarations; none is binding on the United States or on this court. Id. at 165 & n.36, 167-68 & n.38, 169. As to the European Conve ntion on Human Rights, it is an instrument applicable only to its regional state parties and not intended to create new rules of customary international law. Id. at 170. Not only are these-11-

documents non-binding, but under the circumstances of this case, we find them unpersuasive in convincing us Mr. Chen could qualif y for a discretionary wavier or otherwise avoid deportation based on his prior f irearms conviction.

For the reasons stated, and for substantially the s ame reasons articulated in the magistrate judge’s November 7, 2002 Recommendat ion and the district court’s January 30, 2003 Order, we AFFIRM the district court’s Judgment denying Mr. Chen’s petition and dismissing his action with prej udice, and DISMISS this appeal. The mandate shall issue forthwith.

Entered by the Court: WADE BRORBY United States Circuit Judge