Not for Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 04-1564

JACQUELINE DASH,

Petitioner, Appellant,

v.

STEVEN H. FARQUHARSON, DISTRICT DIRECTOR,

BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT, ET AL.,

Respondents, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. William E. Smith, U.S. District Judge]

Before

Boudin, Chief Judge,

Torruella and Selya, Circuit Judges.

Jacqueline Dash on brief pro se.

Robert Clarke Corrente, United States Attorney, Lisa

Dinerman and Dulce Donovan, Assistant United States Attorneys,

on Opposition to Motion for Stay of Removal. 

September 21, 2004
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Per Curiam. Petitioner Jacqueline Dash, a lawful

permanent resident, has filed a motion for stay of deportation

pending appeal of the dismissal of her habeas petition, filed under

28 U.S.C. § 2241. The district court dismissed the petition on the

ground, among others, that it was an abuse of the writ. We

conclude that, even assuming petitioner had not abused the writ,

she still would lose on the merits of her claims.

Petitioner's first contention concerns her eligibility

for a waiver of deportation under § 212(h) of the Immigration and

Nationality Act (INA), 8 U.S.C. § 1182(h), on the basis of extreme

hardship. Petitioner is ineligible for such relief, however,

because she has been convicted of an aggravated felony. Pursuant

to the amendments made by the Illegal Immigration Reform and

Immigrant Responsibility Act (IIRIRA), see § 348(a), such a

conviction bars an alien from applying for a section 212(h) waiver.

Further, and contrary to petitioner's arguments, the

IIRIRA amendment to section 212(h) applies retroactively. IIRIRA

§ 348(b) specifically states that "[t]he amendment made by

subsection (a) shall be effective on the date of the enactment of

this Act and shall apply in the case of any alien who is in

exclusion or deportation proceedings as of such date unless a final

administrative order in such proceedings has been entered as of

such date." This is the kind of language that shows "Congress'

willingness . . . to indicate unambiguously its intention to apply
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specific provisions retroactively." INS v. St. Cyr, 533 U.S. 289,

318-19 & n.43 (2001) (citing § 348(b), in dictum, as an example of

such language). "Where the congressional intent is clear, it

governs." Kaiser Alum. & Chem. Corp. v. Bonjorno, 494 U.S. 827,

837 (1990).

Petitioner's second argument -- that the immigration

judge (IJ) incorrectly concluded that petitioner was not entitled

to apply for a waiver under INA § 212(c), 8 U.S.C. § 1182(c) --

also fails. Specifically, the IJ concluded that petitioner was

ineligible for a section 212(c) waiver because she (petitioner) had

served five or more years for an aggravated felony. Although

petitioner claims that the IJ erred both in his calculation of the

five-year period and in considering the wrong aggravated felonies,

she has waived these issues by defaulting her appeal to the Board

of Immigration Appeals from the IJ's order. The failure to exhaust

administrative remedies precludes consideration of these issues in

the current habeas petition. See Kurfees v. INS, 275 F.3d 332,

335-36 (4th Cir. 2001) (holding that an alien cannot bypass the

exhaustion requirement by filing a habeas petition); see also

Sayyah v. Farquharson, No. 03-1802, slip op. at 6-12 (1st Cir. Aug.

30, 2004).

Petitioner's final argument is that her continuing

detention pending removal is unauthorized by statute and is

unconstitutional. We do not think so and therefore agree with the
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government that petitioner's detention, at least up until the

present time, is authorized by 8 U.S.C. § 1231(a)(1)(C). This

case, therefore, is distinguishable from the circumstances

described in Zadvydas v. Davis, 533 U.S. 678 (2001). See Lema v.

INS, 341 F.3d 853 (9th Cir. 2003).

The judgment of the district court is summarily affirmed,

see 1st Cir. R. 27(c), and the motion for a stay is denied as moot.