Moskin v. Gonzales

MEMORANDUM *** Hafizullah Moskin, a native and citizen of Afghanistan, seeks review of the Immigration Judge’s (“IJ”) decision to permit one of his witnesses, Sylvia Garcia, to testify as a fact witness but not as an expert. Moskin also seeks review of the IJ’s denial of his applications for asylum, withholding of removal, and protection from removal under the Convention Against Torture (“CAT”). The Board of Immigration Appeals (“BIA”) affirmed the IJ’s decision without opinion. We deny the petition for lack of jurisdiction. **** We determine our own jurisdiction de novo. Milne v. Hillblom, 165 F.3d 733, 735 (9th Cir.1999). When the BIA affirms the IJ’s decision without opinion, we review the IJ’s decision as the final agency decision. Abebe v. Gonzales, 432 F.3d 1037, 1039-40 (9th Cir.2005) (en banc). Generally, we lack jurisdiction to review final removal orders for aliens who are removable for committing criminal offenses, including aggravated felonies such as sexual abuse of a minor. See 8 U.S.C. § 1252 (a)(2)(C); 8 U.S.C. § 1227 (a)(2)(A)(ni); 8 U.S.C. § 1101 (a)(43)(A). Here, Moskin is an alien convicted of lewd and lascivious acts upon a child under the age of fourteen, a qualifying aggravated felony. AR 288-300; see 8 U.S.C. § 1101 (a)(43)(A). An exception to this lack of jurisdiction exists, however, for petitions involving constitutional claims or questions of law. See Aguiluz-Arellano v. Gonzales, 446 F.3d 980, 982 (9th Cir.2006); REAL ID Act of 2005, Public Law No. 109-13, Div. B., Section 106(a)(1). Whether or not Moskin’s constitutional claim is colorable, relief is denied. Even if Moskin has raised a colorable constitutional claim, the “proceeding was [not] so fundamentally unfair that [he] was prevented from reasonably presenting [his] case”. Lopez-Umanzor v. Gonzales, 405 F.3d 1049, 1056 (9th Cir.2005) (internal quotations omitted). Moskin does not raise any questions of law because his appeal to the BIA contested only the IJ’s determination that Ms. Garcia’s testimony did not qualify as expert testimony. Accordingly, Moskin waived his right to appeal the denial of his asylum, withholding of removal, and CAT *477 claims, and we lack jurisdiction to hear these arguments. The petition for review is DENIED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. Because the parties are familiar with the facts, we do not recite them here.