# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 21

- 60670

**Herly Pierre Ulysse,**

Petitioner **,**

versus

**Merrick Garland,** U.S. Attorney General **,** Respondent

**.**

Petition for Review of an Order of the Board of Immigration Appeals Agency No. A300

- 317

- 730

Before **Higginbotham, Haynes,**  and **Wilson,** Circuit Judges

**. Per Curiam**  **:** *
Herly Pierre Ulysse , a native and citizen of Canada, petitions for review of a Board of Immigration Appeals’s ( BIA ) decision reversing an immigration judge’s (IJ) grant of his application for cancellation of removal
under § 240(a) of the Immigration and Nationality Act, 8 U. S.C. § 1229b(a). Ulysse contends that (1) the Government failed to prove by clear and

* Pursuant to **5th Cir cuit**  **R ule**  47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Cir cuit**  **R ule**  47.5.4. United States Court of Appeals Fifth Circuit 

### FILED June 28, 2022 Lyle W. Cayce Clerk Case: 21-60670 Document: 00516373540 Page: 1 Date Filed: 06/28/2022No. 21

- 60670

2 convincing evidence that Ulysse was removable pursuant to 8 C.F.R. § 1003.1(d)(3) , and (2) the BIA erroneously review ed the IJ’s factual findings
de novo and improperly engag ed in its own factfinding

. Because Ulysse’s arguments are unexhausted, we lack jurisdiction to address their merits

. Accordingly, we dismiss the petition.

I.
Ulysse was admitted to the United States on June 19, 2007 , under our country’s visa waiver program. On January 14, 2011, Ulysse adjusted his status to lawful permanent resident under § 245 of the Immigration and Nationality Act

. Between 2016 and 2020, Ulysse a massed an extensive criminal record that includes two convictions of possess ing less than 20 grams of cannabis in violation of **Fla. Stat.** § 893.13(6)(b) ; two convictions of using or possessing drug paraphernalia in violation of **Fla.**
**Stat.** § 893.147(1); one conviction of tampering or fabricating physical
evidence in violation of **Fla. Stat.** § 918.13; one conviction of battery in
violation of **Fla. Stat.** § 784.03; and one conviction of possessing device

making equipment with intent to defraud in violation of 18 U.S.C. § 1029(a)(4)

. 1
While Ulysse was in prison in Louisiana for his § 1029(a)(4)
conviction , the Department of Homeland Security served him with a Notice to Appear (NTA) in immigration court . The NTA charged Ulysse as removable under 8 U.S.C. § 1227(a)(2)(A)(ii) , as a n alien who was convicted of two crimes involving moral turpitude ; § 1227(a)(2)(B)(i) , as a n alien who

1 The statute defines “device

- making equipment” as “any equipment, mechanism, or impr ession designed or primarily used for making an access device or a counterfeit access device.” 18 U.S.C. § 1029(e)(6). The factual basis for Ulysse’s guilty plea states that police officers found nine counterfeit credit cards and a credit card skimmer in Ulysse’s bedroom during a drug raid at his sister’s house, where Ulysse was residing at the time. Case: 21-60670 Document: 00516373540 Page: 2 Date Filed: 06/28/2022No. 21

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3 was convict ed of a violation of a law relating to a controlled substance ; and § 1227(a)(2)(B)(ii) , as an alien who is a drug abuser or addict.
Ulysse appeared pro se in immigration court and did not dispute the
NTA or his seven convictions

. Accordingly, the IJ sustained his removability charges under § § 1227(a)(2)(A)(ii) and 1 2 27(a)(2)(B)(i). 2 Ulysse then applied for cancellation of removal. During the hearing on his application, Ulysse elicited favorable testimony from his girlfriend and his correctional counselor. Despite Ulysse’s “very troubling” criminal activity , the IJ determined that Ulysse w as credible and that hi s positive “ equities ” outweighed the negative . The IJ granted his application.

The Government appealed to the BIA, contending that the IJ’s finding that Ulysse was credible was clearly erroneous and that the IJ erred by granting Ulysse ’s application for cancellation of removal

. Now represented by counsel, Ulyss e filed a brief in opposition , asserting no error.
The BIA agreed with the IJ’s assess m e n t that Ulyss e was credible

. B ut it held that the IJ erred in granting Ulysse cancellation of removal because “when [Ulysse’s] equities, including his efforts at rehabilitation, are balanced against the adverse factor of his criminal history,

. . . he does not warrant a favorable exercise of discretion.” Ulysse now petitions for review of the
BIA’s determination.

II.

We review “the BIA’s legal conclusions de novo,” considering “only the BIA’s decision, ‘unless the IJ’s decision has some impact on the BIA’s
decision.’ ” Orellana

- Monson v. Holder , 685 F.3d 511, 517 (5th Cir. 2012)

2 The IJ did not mention Ulysse’s removability under § 1227(a)(2)(B)(ii), and the Government did not raise the issue before the BIA. We therefore do not add ress it further here. Case: 21-60670 Document: 00516373540 Page: 3 Date Filed: 06/28/2022No. 21

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4 (quoting Wang v. Holder , 569 F.3d 531, 536 (5th Cir. 2009)). We “may review a final order of removal only if,” inter alia , a petitioner “ has exhausted all administrative remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1). “An alien fails to exhaust his administrative remedies with respect to an issue when the issue is not raised in the first instance before the
BIA.” Vaz quez v. Sessions , 885 F.3d 862, 868 (5th Cir. 2018) (quoting Wang v. Ashcroft , 260 F.3d 448, 452 (5th Cir. 2001)) (alteration omitted). “Th[e] exhaustion requirement is ‘mandatory and jurisdictional.’” Monteon

Camargo v. Barr , 918 F.3d 423, 429 (5th Cir. 2019) (quoting Omari v. Holder , 562 F.3d 314, 324 (5th Cir. 2009)).

III.
Ulysse contends that the Government did not prove by clear and convincing evidence that Ulysse was removable under § 1227(a)(2)(B)(i)
because his Florida convictions for possession o f cannabis are not a removable offense under § 1227(a)(2)(B)(i)

. Ulysse specifically asserts that
Florida’s definition of “cannabis” is broader than the federal definition of
“mari h uana , ” and thus his convictions do not categorically “relat[e] to” a banne d substance under the Controlled Substances Act, 8 U.S.C. § 802 , et
seq

. The Government counters that we lack jurisdiction to consider this issue
because it is unexhausted , 3 and we agree

.
I n a one

- sentence footnote devoid of analysis , Ulysse asserted before
the BIA that his Florida conviction in violation of **Fla. Stat.** § 893.13(6)(b) is insufficient to sustain a charge of removability. Ulysse now attempts to expound on that statement, spilling s ubstantial ink in his appellate brief to contend that his § 893.13(6)(b) conviction does not “relat[e] to” a controlled

3 Ulysse did not file a reply brief, and thus did not respond to the Government’s argument that the issue is unexhausted. Case: 21-60670 Document: 00516373540 Page: 4 Date Filed: 06/28/2022No. 21

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5 substance as defined by 21 U.S.C. § 802(6). But he never offered this analy sis before the BIA, and thus the BIA did not address the issue in its decision. As

t he BIA did not “ deem[] [ the ] issue sufficiently presented to consider it on the merits, ” the exhaustion requirement has not been satisfied

. Lopez

- Dubon
v. Holder , 609 F.3d 642, 644 (5th Cir. 2010) (quoting Sidabutar v. Gonzales , 503 F.3d 1116, 11 19 (10th Cir. 2007) )

. Be cause the issue is unexhausted, we lack jurisdiction to consider it further

. See § 1252(d)(1)

. 4
Next, Ulysse contends that in reversing the IJ’s discretionary grant of
cancellation of removal , the BIA erroneously reviewed the IJ’s findings of
fact de novo , and improperly engaged in its own factfinding , relying in part

on facts extraneous to the record. However, “ c ertain allegations of BIA error must first be brought to the BIA in a motion for reconsideration.” Omari , 562 F.3d at 3 19

– 20. Ulysse’s alleged error s fall within this requirement. Id.

at 320 (citing Sidabutar , 503 F.3d at 1122) ; Avelar

- Oliva v. Barr , 954 F.3d 757, 766 (5th Cir. 2020)

. Because Ulysse did not raise th ese issue s before the BIA
via a motion for reconsideration , the y are unexhausted, see Omari , 562 F.3d

at 320 , and we lack jurisdiction to consider them further , see § 1252(d)(1)

. 5

4 Even if we had jurisdiction and agreed with Ulysse that he is not removable under § 1227(a)(2)(B)(i), he is ne vertheless removable under § 1227(a)(2)(A)(ii), as an alien who was convicted of two crimes involving moral turpitude. On appeal, Ulysse challenges only his removability based on his controlled substance violations. He does not contest removability under § 1227(a)(2)(A)(ii). Thus, Ulysse ultimately would not prevail even if we had jurisdiction.

5 Insofar as Ulysse asks us to review the BIA’s rebalancing of “ the adverse [equities] evidencing the alien’s undesirability as a permanent resident with the soci al and humane considerations presented [on] his

. . . behalf ” in weighing his request for cancellation of removal, In re C

- V

- T , 22 I&N Dec. 7, 11 (BIA 1998) , we likewise lack jurisdiction to do so . “[A]fter the adjudicator has determined that the alien may be legally considered for cancellation of removal

. . . the adjudicator’s discretion enter[s] the picture

. . . . [This] decision

. . . is shielded from judicial review by § 1252(a)(2)(B)(i) .

. . .” Tre jo v. Garland , 3 F.4th 760, 773 (5th Cir. 2021)

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6 I V

. Ulysse’s argument that his Florida conviction in violation of § 893.13(6)(b) is insufficient to sustain a charge of removability is
unexhausted because he failed sufficiently to raise the issue before the BIA

. Similarly, Ulysse ’s conten tion s that the BIA improperly review ed the IJ’s findings of fact de novo and engaged in impermissible factfinding are unexhausted because he failed to raise th ose alleg ed error s first in a motion
for reconsideration before the BIA. W e therefore lack jurisdiction to consider Ulysse’s petitio n for review

. **PETITION DISMISSED** 

. Case: 21-60670 Document: 00516373540 Page: 6 Date Filed: 06/28/2022