UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-1857

MARVIN GAYE POWELL,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration 

Appeals.

Submitted: August 13, 2013 Decided: August 21, 2013

Before WILKINSON, MOTZ, and AGEE, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Marvin Gaye Powell, Petitioner Pro Se. Edward Earl Wiggers, 

Office of Immigration Litigation, UNITED STATES DEPARTMENT OF 

JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Marvin Gaye Powell, a native and citizen of Jamaica, 

petitions for review of an order of the Board of Immigration 

Appeals (“Board”) dismissing his appeal from the immigration 

judge’s order finding that Powell was removable and that he was 

not eligible for asylum, withholding of removal or deferral of 

removal under the Convention Against Torture (“CAT”). 

Powell was found removable for having been convicted 

of possession of cocaine with intent to distribute, in violation 

of Va. Code Ann. § 18.2-248. It was noted that Powell’s 

conviction was both an aggravated felony and a controlled 

substance offense. 

This court lacks jurisdiction, except as provided in 8 

U.S.C. § 1252(a)(2)(D) (2006), to review the final order of 

removal of an alien convicted of certain enumerated crimes, 

including an aggravated felony or a controlled substance

violation. Under § 1252(a)(2)(C), this court retains

jurisdiction “to review factual determinations that trigger the 

jurisdiction-stripping provision, such as whether [Powell] [i]s 

an alien and whether []he has been convicted of an aggravated 

felony” or controlled substance violation. Ramtulla v. 

Ashcroft, 301 F.3d 202, 203 (4th Cir. 2002). Once we confirm 

these two factual determinations, then, under 8 U.S.C. 

§ 1252(a)(2)(C), (D), we can only consider “constitutional 
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claims or questions of law.” § 1252(a)(2)(D); see Turkson v. 

Holder, 667 F.3d 523, 527 (4th Cir. 2012).

Under 8 U.S.C. § 1227(a)(2)(A)(iii) (2006), an alien 

is removable for having been convicted of an aggravated felony 

at any time after admission. Powell was first admitted to this 

country in 1984. Under INA § 101(a)(43)(B), 8 U.S.C.

§ 1101(a)(43)(B) (2006), an aggravated felony includes “illicit 

trafficking in a controlled substance . . . including a drug 

trafficking crime (as defined in section 924(c) of Title 18)[.]” 

Under 18 U.S.C. § 924(c)(2), a drug trafficking crime means any 

felony punishable under the Controlled Substances Act. Under 

INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i), an alien is 

also removable for having been convicted of a controlled 

substance offense at any time after admission. Powell’s 

conviction for possession of cocaine with intent to distribute, 

for which he received a six year sentence, is clearly an 

aggravated felony and a controlled substance offense.

Thus, we have only jurisdiction to consider 

constitutional claims and questions of law. Powell claims he is 

not removable because he recited the military oath when he 

joined the United States Army and that by taking the oath he 

became a national of the United States. This claim is without 

merit, as this court has rejected a similar claim. See

Dragenice v. Gonzales, 470 F.3d 183, 188 (4th Cir. 2006). 
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Powell also contends he is eligible for relief from 

removal under Immigration and Nationality Act § 212(h), 8 U.S.C. 

§ 1182(h)(1)(B) (2006). Powell did not raise this claim before 

the immigration judge or the Board. Pursuant to 8 U.S.C. 

§ 1252(d)(1), “[a] court may review a final order of removal 

only if . . . the alien has exhausted all administrative 

remedies available to the alien as of right[.]” This court has 

noted that “an alien who has failed to raise claims during an 

appeal to the [Board] has waived his right to raise those claims 

before a federal court on appeal of the [Board’s] decision.” 

Farrokhi v. INS, 900 F.2d 697, 700 (4th Cir. 1990); see also

Gonahasa v. INS, 181 F.3d 538, 544 (4th Cir. 1999). Moreover, 

this court has held that it lacks jurisdiction to consider an 

argument not made before the Board. Asika v. Ashcroft, 362 F.3d 

264, 267 n.3 (4th Cir. 2004). Because Powell did not apply for 

§ 212(h) relief, we do not have jurisdiction to review this 

claim.

Because Powell does not raise a colorable 

constitutional claim or a question of law, we deny the petition 

for review. We grant Powell’s motion for in forma pauperis 

status. We deny his second motion to stay and his motion to

reconsider the denial of his first motion to stay. We dispense 

with oral argument because the facts and legal contentions are
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adequately presented in the materials before the court and 

argument would not aid the decisional process.

PETITION DENIED