* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and 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.

** After examining the briefs and the appellate record, this panel has

determined unanimously that oral argument would not materially assist the determination

of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case therefore is

ordered submitted without oral argument.

UNITED STATES COURT OF APPEALS

Filed 8/8/96 TENTH CIRCUIT

NEGASH MOHAMMED AHMED,

Petitioner,

v. No. 95-9546

 (BIA No. A27-331-395) 

IMMIGRATION & NATURALIZATION

SERVICE,

Respondent.

ORDER AND JUDGMENT *

Before TACHA, BALDOCK, and BRISCOE, Circuit Judges.**

Petitioner Negash Mohammed Ahmed seeks review of a decision of the Board of

Immigration Appeals (“BIA”) denying him asylum and ordering him deported because he

was convicted of two crimes involving moral turpitude. We exercise jurisdiction

pursuant to 8 U.S.C. § 1105a and deny the petition. 
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I.

Petitioner, a native and citizen of Ethiopia, entered the United States as a refugee

in June 1985, and was granted lawful permanent resident status on September 22, 1986. 

On May 29, 1987, a Minnesota state jury convicted Petitioner of the crime of criminal

sexual conduct in the third degree for an incident in which Petitioner forced a woman in a

telephone booth to perform oral sex. On August 1, 1994, Petitioner pled guilty in

Minnesota state court to the crime of prostitution as a patron for an incident in which he

had sexual intercourse with a fifteen-year old girl. On March 30, 1995, the INS issued

Petitioner an order to show cause why he should not be deported as an alien convicted of

two crimes involving moral turpitude pursuant to § 241(a)(2)(A)(ii) of the Immigration

and Naturalization Act (“INA”), 8 U.S.C. § 1251(a)(2)(A)(ii). 

At his immigration hearing, Petitioner admitted the allegations in the order to show

cause, including the two state convictions. Petitioner applied for asylum and withholding

of deportation under § 208(a) and § 243(h)(1) of the INA, 8 U.S.C. §§ 1158(a) and

1253(h)(1), and applied for relief from deportation under § 212(c) of the INA, 8 U.S.C.

§ 1182(c). The immigration judge denied Petitioner’s application for asylum and

withholding of deportation on the grounds that Petitioner’s first conviction was a

“particularly serious crime” that rendered him statutorily ineligible for asylum or

withholding of deportation under 8 U.S.C. § 1253(h)(2)(B). The immigration judge also

denied Petitioner’s § 212(c) application for relief from deportation as a matter of
1 Petitioner also contends that the immigration judge erroneously denied his

§ 212(c) application for relief from deportation. The record demonstrates, however, that

Petitioner did not appeal the immigration judge’s denial of his § 212(c) application to the

BIA. Consequently, we do not have jurisdiction to address the issue. E.g., Rivera-Zurita

v. Immigration & Naturalization Service, 946 F.2d 118, 120 n.2 (10th Cir. 1991) (“The

failure to raise an issue on appeal to the Board [of Immigration Appeals] constitutes

failure to exhaust administrative remedies with respect to that question and deprives the

Court of Appeals of jurisdiction to hear the matter.”).

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discretion, finding that Petitioner’s criminal record demonstrated that he was a repeat sex

offender and a danger to society. The BIA affirmed the immigration judge in all respects. 

II.

On appeal, Petitioner urges us to reverse the decision of the BIA. Petitioner

contends that: (1) he is eligible for asylum and withholding of deportation due to a

well-founded fear of persecution if he returns to Ethiopia, and (2) he should not be

deported for committing two crimes of moral turpitude because he was not advised of the

consequences of pleading guilty to his second conviction--prostitution as a patron.1 We

review the BIA’s factual findings for substantial evidence, discretionary determinations

for an abuse of discretion, and legal conclusions de novo. Hadjimehdigholi v.

Immigration & Naturalization Service, 49 F.3d 642, 647 (10th Cir. 1995); Turri v.

Immigration & Naturalization Service, 997 F.2d 1306, 1308-09 (10th Cir. 1993). 

A.

Petitioner first argues that he is eligible for asylum and withholding of deportation

because he has a well-founded fear of persecution, imprisonment, or death if he returns to
2 Petitioner was convicted of violating Minn. Stat. § 609.344.1(c) which

provides:

A person who engages in sexual penetration with another person is

guilty of criminal sexual conduct in the third degree if . . . the actor uses

force or coercion to accomplish the penetration.

Minn. Stat. § 609.344.1(c).

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Ethiopia. 

The BIA affirmed the immigration judge’s denial of Petitioner’s application for

asylum and withholding of deportation on the grounds that Petitioner’s conviction for

criminal sexual conduct in the third degree was a “particularly serious crime” that

rendered him ineligible for asylum and withholding of deportation under § 243(h)(2)(B)

of the INA. Both the immigration judge and the BIA concluded the conviction was a

“particularly serious crime” because it involved sexual penetration through the use of

force or coercion.2 

Petitioner does not contest the determination that the conviction was a “particularly

serious crime.” Instead, he urges that his fear of persecution in Ethiopia renders him

eligible for asylum. Under § 243(h)(2)(B) of the INA, 8 U.S.C. § 1253(h)(2)(B),

however, an alien convicted of a “particularly serious crime” is barred from obtaining

asylum and withholding of deportation regardless of whether the alien otherwise qualifies

as a “refugee” under § 101(a)(42) of the INA, 8 U.S.C. § 1101(a)(42). See also Al-Salehi

v. Immigration & Naturalization Service, 47 F.3d 390, 391-93 (10th Cir. 1995). Even
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were we to conclude (and we do not do so here) that Petitioner is otherwise qualified for

asylum, Congress has directed that he is ineligible for asylum for his conviction “by a

final judgment of a particularly serious crime.” 8 U.S.C. § 1253(h)(1)(2)(B). 

Accordingly, we uphold the BIA’s determination that Petitioner is ineligible for asylum

because his conviction for criminal sexual conduct in the third degree constitutes “a

particularly serious crime” that renders him statutorily ineligible for relief. See, e.g,

Groza v. Immigration & Naturalization Service, 30 F.3d 814, 823 (7th Cir. 1994) (holding

that a rape conviction that included the use of force as an element of the offense was a

“particularly serious crime” under 8 U.S.C. § 1253(h)(2)(B)).

B.

Petitioner next argues that he should not be deported as an alien convicted of two

crimes of moral turpitude because his second conviction was entered on an inadequate

guilty plea. Because he was allegedly not advised of the consequences of pleading guilty,

Petitioner contends that his conviction for prostitution as a patron does not qualify as a

predicate crime of moral turpitude under 8 U.S.C. § 1251(a)(2)(A)(ii).

We reject Petitioner’s attempt to collaterally attack the validity of his state

conviction for prostitution as a patron in this deportation proceeding. The law is settled

that “an alien cannot collaterally attack the legitimacy of a state criminal conviction in a

deportation proceeding.” Trench v. Immigration & Naturalization Service, 783 F.2d 181,

184 (10th Cir.), cert. denied, 479 U.S. 961 (1986); see also Zinnanti v. Immigration &
3 We grant Petitioner’s motion to proceed in forma pauperis on appeal.

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Naturalization Service, 651 F.2d 420, 421 (5th Cir. 1981) (holding that an alien in a

deportation proceeding may not collaterally attack the constitutional adequacy of his

guilty plea to a state criminal offense). Because Petitioner may not collaterally attack his

state conviction in this proceeding, his conviction for prostitution as a patron provides a

valid basis for deportation under § 241(a)(2)(A)(ii) of the INA unless it is overturned on

direct appeal or in a post-conviction proceeding. Trench, 783 F.2d at 184. The

deportation order was therefore properly issued.

In sum, we DENY the petition for review.3

Entered for the Court,

Bobby R. Baldock

Circuit Judge