United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued August 8, 2006

Decided September 26, 2006

Before

Hon. DANIEL A. MANION, Circuit Judge

Hon. ILANA DIAMOND ROVNER, Circuit Judge

Hon. DIANE S. SYKES, Circuit Judge

No. 05-3786

JAYESH K. SHAH,

Petitioner,

v.

ALBERTO R. GONZALES,

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

No. A34-998-533

ORDER

Jayesh Shah petitions for review of an order of the Board of Immigration

Appeals (“BIA”) denying his motion to reconsider a final order denying a

discretionary waiver of inadmissability under 8 U.S.C. § 212(c). He primarily

challenges, on constitutional grounds, the BIA’s holding that he was statutorily

ineligible for relief under § 212(c). But we need not reach the constitutional issue

Shah raises because the BIA also upheld the immigration judge’s decision that

Shah did not merit a favorable exercise of discretion under § 212(c). In addition,

Shah failed to exhaust his administrative remedies with respect to his second

argument: that he was denied due process because he was not provided with

transcripts of the proceedings in the immigration court. Accordingly, we deny the

petition for review. 

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53
No. 05-3786 Page 2

I.

Shah, a native of India, was admitted to the United States in June 1977 and

became a lawful permanent resident. In December 1990, he pleaded guilty in the

Circuit Court of Cook County, Illinois, to one count of aggravated criminal sexual

abuse for having sexual contact with a minor under the age of fourteen, in violation

of 38 Ill. Rev. Stats. § 12-16(c)(1). He was sentenced to four years’ probation and a

fine. At the time Shah pleaded guilty, the conviction did not render him excludable

or deportable under then-applicable immigration law. Shah successfully completed

his probation, and in 2001, after ten years without another offense, was relieved of

his obligation under Illinois law to register as a sex offender. He had no further

criminal convictions. 

As part of the Illegal Immigration Reform and Immigrant Responsibility Act

(“IIRIRA”), enacted in 1996, the term “aggravated felony” was broadened to

encompass more offenses, including Shah’s. See 8 U.S.C. § 1101(a)(43)(A) (defining

“aggravated felony” to include “sexual abuse of a minor”). As a result, in August

2000 (nearly a decade after his conviction), the Immigration and Naturalization

Service (“INS”) served Shah with a Notice to Appear, charging him with

removability under 8 U.S.C. § 1227(a)(2)(A)(iii) for having committed an aggravated

felony after admission into the United States. 

Shah appeared before an immigration judge (“IJ”) and conceded removability. 

He applied for a discretionary waiver of removal under § 212 of the Immigration

and Nationality Act (“INA”), as a lawful permanent resident who had maintained

an unrelinquished domicile in the United States for at least seven years. See 8

U.S.C. 1182(c). Although § 212(c) had also been repealed by IIRIRA and replaced

with a narrower discretionary provision for cancellation of removal that excludes

from eligibility anyone with a conviction for an aggravated felony, see 8 U.S.C. §

1229b, Shah remained eligible for relief under the original provision. The Supreme

Court held that the repeal of § 212(c) cannot be applied retroactively to aliens such

as Shah whose convictions were obtained by guilty plea prior to IIRIRA’s effective

date and who would have been eligible for the relief at the time of their plea. INS v.

St. Cyr, 533 U.S. 289 (2001).

At a hearing in November 2004, Shah presented testimony and evidence in

support of his application. He submitted evidence of consistent employment since

his arrival in the United States and a letter from his current employer describing

him as “essential to our operations.” Also submitted were letters from members of

various civic and cultural organizations describing his involvement and his good

character. The content of Shah’s testimony is unknown because there is no

transcript in the record. The immigration judge denied Shah’s application in an
No. 05-3786 Page 3

1

Shah states in his brief that his appeal to the BIA challenged not just the

IJ’s decision denying the motion for reconsideration but also the initial decision

denying him relief under § 212(c). And in the two-page summary attached to the

notice of appeal to the BIA stating the reasons for the appeal, Shah clearly targets

both decisions. But on the cover sheet of the notice of appeal, in the section entitled

“What decision are you appealing?” the only box that is checked is the one next to

the statement “I am filing an appeal from the Immigration Judge’s decision denying

a motion to reopen or reconsider dated January 31, 2005.” 

oral ruling, though the absence of any transcript in the record means that the basis

for his decision is also unknown. 

Instead of immediately appealing to the BIA, Shah filed a motion for

reconsideration. He argued that the government attorney’s cross-examination,

which probed into the details underlying his conviction, amounted to an

impermissible “reopening” of his criminal case that was unfairly prejudicial. Shah

further contended that the IJ did not consider the mitigating evidence he had

submitted. In his motion Shah also reported that he had requested a transcript of

the IJ’s oral decision, but had not received one because transcripts are prepared

only for appeals, and he asserted that the available recording was of poor quality.

The IJ denied Shah’s motion for reconsideration. In a written decision, the IJ

acknowledged Shah’s eligibility for a § 212(c) waiver, but concluded that the

evidence Shah provided “failed to establish that discretion be exercised in his

favor.” The IJ explained that he had “balanced the equities in favor of respondent

against the repulsive crime which he committed.” Shah’s motion, moreover, “fails to

raise any errors in fact” and “fails to persuasively identify any errors in the

application of the appropriate standard by which to measure respondent’s waiver

request.”

Shah appealed to the BIA. Again, Shah requested a transcript of the IJ’s

decision, but he received a notice informing him that transcripts are not prepared

for appeals from decisions “denying motion to reopen.”1

 Shah was informed that he

could listen to the tapes of the hearing or “address the need for a transcript” in his

appeal. In his brief to the BIA, Shah argued that the absence of a transcript

amounted to a denial of due process because he could not effectively develop his

arguments about the IJ’s errors. He also reiterated his arguments that on crossexamination the government went beyond the scope of proving his conviction and

that, by failing to consider the mitigating evidence, the IJ improperly balanced the

equities in concluding that he did not merit a favorable exercise of discretion. In its

response brief, the government argued that Shah was no longer eligible for § 212(c)

relief in light of the BIA’s recision decision in In Re Blake, 23 I. & N. Dec. 722 (BIA
No. 05-3786 Page 4

2005). In that case, the BIA held that an alien who was removable on the basis of a

conviction for a particular aggravated felony that was not also a ground of

inadmissibility under § 212(a) was not eligible for a waiver of inadmissability under

§ 212(c). Shah was convicted of an aggravated felony that is a basis for removal

but not for inadmissability—in fact, the same felony that the alien in Blake

committed—and the government argued that Shah was similarly barred from relief

under § 212(c).

In a written decision issued on June 29, 2005, the BIA dismissed Shah’s

appeal. First, the BIA upheld the IJ’s decision to “deny a waiver on a discretionary

basis.” The BIA further noted that Shah’s motion to reconsider in the immigration

court “did not allege any error in the Immigration Judge’s decision.” In addition,

the BIA concluded that in light of Blake, Shah was no longer eligible for a waiver

under § 212(c). 

Shah then filed a motion to reconsider with the BIA. He disputed the BIA’s

statement that he had not alleged error in his motion requesting that the IJ

reconsider his ruling. Though he requested that the BIA “reconsider its decision

reviewing the errors alleged in the ‘Motion for Reconsideration’ and respondent’s

‘Appeal Brief,’” his brief did not mention the issues he had raised on appeal to the

BIA, namely, the IJ’s discretionary determination or the absence of transcripts in

the record. The only issue he discussed was the BIA’s conclusion that he was not

eligible for a waiver. Shah argued that Blake was inconsistent with the Supreme

Court’s decision in St. Cyr, in which the Court had reasoned that an alien could not

be stripped of rights he had relied upon at the time of his guilty plea. See St. Cyr,

533 U.S. at 321-24 (holding that repeal of § 212(c) would not be given retroactive

effect in part because it eliminated any possibility of § 212(c) relief for people who

had entered into plea agreements with the expectation that they would be eligible

for such relief). The BIA denied Shah’s motion, explaining that its “previous

decision in these proceedings was correct.” The BIA also restated that under Blake, 

“because the aggravated felony ground of removal in this case, i.e., ‘sexual abuse of

a minor’ . . . has no statutory counterpart in the grounds of inadmissability under

section 212(a) of the Act, the respondent is not statutorily eligible to apply for a

section 212(c) waiver.” 

Shah then petitioned for review in this court, purporting to challenge both

the BIA’s decision upholding the IJ’s denial of relief under § 212(c) (“the June 29

decision”) and its decision denying his motion to reconsider. The government moved

to dismiss the appeal as untimely. Indeed, Shah did not file a notice of appeal from

the BIA’s June 29 decision within the required thirty days, depriving this court of

jurisdiction to review that decision. See 8 U.S.C. § 1252(b)(1); Sankarapillai v.

Ashcroft, 330 F.3d 1004, 1006 (7th Cir. 2003) (holding that thirty-day statutory

period for filing appeals from final orders of BIA is jurisdictional requirement). 
No. 05-3786 Page 5

However, the notice of appeal is timely with respect to the BIA’s decision denying

the motion to reconsider, and after hearing from the parties, we entered an order

noting that “the petitioner is asking only that this court review the BIA’s order of

August 25, 2005.”

II.

Shah first challenges the denial of his motion to reconsider on the ground

that the statutory interpretation that the BIA announced in Blake, and its

retroactive application in his case, is unconstitutional. He contends that the BIA’s

interpretation of the statute arbitrarily creates two classes of aliens and has the

bizarre result of “punishing” aliens like him whose offenses are too minor to be

grounds for inadmissibility while reserving greater rights for aliens whose offenses

are more severe. The government has not responded to the argument, however,

instead urging us to dismiss Shah’s petition for lack of jurisdiction because the BIA

also affirmed the IJ’s decision that Shah did not merit a favorable exercise of

discretion under § 212(c), and that decision is not reviewable. 

The government’s argument that we lack jurisdiction to review the BIA’s

decision denying Shah’s motion for reconsideration is flawed. The government cites

8 U.S.C. § 1252(a)(2)(B)(ii), which strips reviewing courts of jurisdiction to review

any decision, other than those granting or denying asylum, that is within the

discretion of the Attorney General. But Shah is not seeking only a review of a

discretionary decision: the BIA also denied the motion to reconsider on the ground

that Shah was not eligible for § 212(c) relief under Blake, rejecting Shah’s argument

that Blake was wrongly decided and unconstitutional. A determination that an

alien is not eligible for discretionary relief is different than the decision that he is

not entitled to such relief. See Velez-Lotero v. Achim, 414 F.3d 776,780 (7th Cir.

2005). The BIA’s decision was a purely legal conclusion that Shah no longer

qualified for the relief he sought. He now argues that the decision violates his

constitutional rights to due process and equal protection, and we have jurisdiction

to review “constitutional questions and questions of law.” REAL ID Act of 2005,

Pub. L. No. 109-13, 119 Stat. 231, § 106(a)(1)(iii); see Quezada-Luna v. Gonzales,

439 F.3d 403, 405 (7th Cir. 2006).

Nevertheless, we decline to address Shah’s argument that the BIA’s decision

rendering him ineligible for a waiver of inadmissibility is unconstitutional because

the petition must still be denied on the ground that he never challenged the BIA’s

alternate basis for denying relief, and he is now barred from doing so. “Nonconstitutional arguments always come first; constitutional contentions must be set

aside until their resolution is unavoidable.” Rehman v. Gonzales, 441 F.3d 506, 508

(7th Cir. 2006); Ameritech Corp. v. McCann, 403 F.3d 908, 911 (7th Cir. 2005)

(“federal courts are supposed to explore all non-constitutional grounds of decision
No. 05-3786 Page 6

first”). In its June 29 decision the BIA upheld the IJ’s conclusion that Shah did not

merit a favorable exercise of discretion under § 212(c); in other words, that he was

not entitled to relief even if eligible. Though he stated at oral argument that he

asked the BIA to reconsider a number of issues, we read his brief to the BIA as

challenging Blake. Shah did not challenge the portion of the BIA’s decision

upholding the discretionary determination in his motion to reconsider and does not

challenge it in this court (nor could he, given the limited scope of the appeal). That

decision is now “unassailable.” See Rehman, 441 F.3d at 508. As a result, even if

we were to address Shah’s argument that the BIA’s decision in Blake is

unconstitutional, a favorable decision would not help him because it would simply

reinstate his eligibility for relief under § 212(c). But an IJ already decided that he

did not warrant such relief and the BIA affirmed this decision. We do not think

Shah effectively challenged the discretionary decision in his motion to reconsider,

but even if he had challenged it at every level, we still would have lacked

jurisdiction to address the issue on appeal. 8 U.S.C. § 1252(a)(2)(B)(ii); see Tunis v.

Gonzales, 447 F.3d 547, 549 (7th Cir. 2006). 

Shah also argues that he was denied due process because he was never 

provided with a transcript of the proceedings before the IJ. We do not have

jurisdiction to address this argument because, by not raising it in his motion to

reconsider, Shah failed to exhaust his administrative remedies. See Awad v.

Ashcroft, 328 F.3d 336, 340 (7th Cir. 2003) (holding that exhaustion requirement is

jurisdictional and declining to address argument alien did not raise in motion to

reconsider). On appeal to the BIA, Shah argued that the denial of access to

transcripts amounted to a denial of due process and requested the opportunity to

alter or amend his brief if the BIA ordered preparation of a transcript. The BIA’s

decision dismissing Shah’s appeal does not address the adequacy of the record or

resolve Shah’s due process challenge. Nevertheless—despite his contrary

representation at oral argument—in his motion to reconsider, Shah did not raise

the issue; he attacked the portion of the BIA’s decision addressing his eligibility for

a discretionary waiver of inadmissability in light of Blake. He thereby failed to

exhaust his administrative remedies and deprived this court of jurisdiction to

consider his argument that he was denied due process. 

III.

The BIA’s June 29 decision provided two separate reasons for upholding the

IJ’s decision to deny § 212(c) relief: first, that Shah was not entitled to such relief;

and, second, that he was no longer eligible for it in any case. The discretionary

portion of the BIA’s decision is now unreviewable, and provides a basis for deciding

this appeal without addressing Shah’s constitutional challenge to the BIA’s holding

in Blake. Further, Shah’s failure to exhaust his administrative remedies with
No. 05-3786 Page 7

respect to his due-process argument deprives this court of jurisdiction to address it. 

The petition for review is DENIED.