Ben Tatu Chirikadzi v. Attorney General of the United States of America

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-2739
________________
BEN TATU CHIRIKADZI,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED
STATES OF AMERICA; BUREAU OF IMMIGRATION
& CUSTOMS ENFORCEMENT,
Respondents
____________________________________
On Petition for Review of an Order
of the Board of Immigration Appeals
Immigration Judge Grace A. Sease
(Agency No. A97 698 087)
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
FEBRUARY 8, 2006
Before: SLOVITER, SMITH AND VANANTWERPEN, Circuit Judges.
(Filed February 14, 2006)
_______________________
OPINION

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Pub L. No. 109-13, 119 Stat. 231.1
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_______________________
PER CURIAM
I.
Ben Tatu Chirikadzi, a native and citizen of Zimbabwe, entered the United States
in 1997 as a non-immigrant student. In 2004, after being arrested on unrelated charges,
the Bureau of Immigration Control and Enforcement (“BICE”) charged Chirikadzi with
being removable pursuant to 8 U.S.C. § 1227(a)(1)(B) for staying beyond the period
authorized. Chirikadzi conceded his removability. On August 25, 2004, the Immigration
Judge (“IJ”) granted Chirikadzi voluntary departure and ordered that he remain detained
until his departure. See Exhibits to Govt. Response to Habeas Petition, Exh. E.
Chirikadzi filed an appeal to the Board of Immigration Appeals (“BIA”). The BIA
dismissed the appeal, finding that Chirikadzi had waived his right to appeal during the
proceedings before the IJ. See id., Exh. F.
In March 2005, Chirikadzi filed a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2241 in the District Court for the Middle District of Pennsylvania.
Chirikadzi sought a stay of removal and release from detention. The District Court
granted a stay of removal, and subsequently transferred the matter to this Court as a
petition for review pursuant to the Real ID Act of 2005 . In his brief to this Court,1
Chirikadzi raises additional claims challenging the finding of removability and seeking

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Chirikazi does not argue his detention claim in his brief to this Court and it appears2
he is no longer in custody within the Middle District of Pennsylvania.
To the extent Chirikadzi alleges that counsel was ineffective for failing to apply for3
asylum, Chirikadzi did not adequately present an ineffective assistance of counsel claim
to the BIA. See Gov’t Response Exh. F; Matter of Lozada, 19 I. & N. Dec. 637, 638
(BIA 1988).
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political asylum and adjustment of status.
II.
To the extent Chirikadzi remains in BICE custody and continues to seek release
from detention, such a claim should be presented to the district court in the district in
which he is detained. See Bonhometre v. Gonzales, 414 F.3d 442, 445-46 (3d Cir. 2005)2
(recognizing that the Real ID Act made petitions for review the exclusive means for
judicial review of orders of removal, but did not eliminate district court habeas
jurisdiction over challenges to detention); 28 U.S.C. § 2241.
As to Chirikadzi’s remaining claims, a court may review a final order of removal
only if the petitioner has exhausted all of the administrative remedies available to him as
of right. 8 U.S.C. § 1252(d)(1); Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d Cir.
2005). Chirikadzi did not exhaust his administrative remedies. Through counsel,
Chirikadzi waived his right to appeal the IJ’s order to the BIA, and Chirikadzi concedes
he did not present a claim of asylum to the IJ. See Petitioner’s document dated3
6/16/2005. Furthermore, assuming Chirikadzi applied for adjustment of status, the denial
of such relief is not subject to judicial review. See 8 U.S.C. § 1252(a)(2)(B)(I).

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III.
Accordingly, for the reasons state above we will deny the petition for review.

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