Sushill Vidia Tota-Maharaj v. Eric H. Holder, Jr., United States Attorney General

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0180n.06
No. 09-4115
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SUSHILL VIDIA TOTA-MAHARAJ,
Petitioner,
V.
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
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ON PETITION FOR REVIEW
FROM A FINAL ORDER OF
THE BOARD OF
IMMIGRATION APPEALS
Before: GUY, BOGGS, and GIBBONS, Circuit Judges.
BOGGS, Circuit Judge. In this immigration case, Sushill Vidia Tota-Maharaj, a
native and citizen of Trinidad & Tobago, appeals the decision of the Board of Immigration Appeals
(the “Board”) denying his claims for withholding of removal under § 241(b)(3) of the Immigration
and Nationality Act (“INA”), 8 U.S.C. § 1231(b)(3), and protection under the United Nations
Convention Against Torture (“CAT”), 8 C.F.R. §§ 1208.16–1208.18. Because Tota-Maharaj is
subject to removal on grounds that this court lacks jurisdiction to review, we deny his petition.
Tota-Maharaj entered the United States in 1993 without being admitted or paroled. He
became well acquainted with the United States criminal court system, and his record includes three
felony convictions: receipt of stolen property (March 2008); possession of a controlled substance
(February 2007); and embezzlement (November 2006). On October 1, 2008, the Department of

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Homeland Security served Tota-Maharaj with a Notice to Appear (“NTA”) and placed him in
removal proceedings.
The NTA alleged Tota-Maharaj was subject to removal on three separate grounds: 1) entering
the United States without inspection; 2) having a controlled substance conviction; and 3) having
committed a crime of moral turpitude (embezzlement and/or receipt of stolen property). Tota-
Maharaj did not and does not challenge these charges. Instead, he filed applications requesting
asylum and withholding of removal under § 241(b)(3) of the INA, and protection under CAT. The
immigration judge (“IJ”) denied all three applications. She found that “all charges of removability
are sustained in this matter by clear and convincing evidence,” and ordered that Tota-Maharaj be
deported “on the charges contained in the Notice to Appear.”
Tota-Maharaj appealed the denial of withholding of removal and CAT protection to the
Board. The Board dismissed the appeal, affirming the IJ. Tota-Maharaj then timely filed a petition
for review with this court, arguing that the Board should be reversed because its factual
determinations were not supported by substantial evidence.
Congress provides this court with exclusive jurisdiction to review a final order of removal.
INA §§ 242(a)(1) and (a)(5), 8 U.S.C. §§ 1252(a)(1) and (a)(5). However, Congress has restricted
the review of removal orders against criminal aliens. The INA provides: “No court shall have
jurisdiction to review any final order of removal against an alien who is removable by reason of
having committed a criminal offense covered” under certain sections of the INA. INA §
242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C). Criminal offenses so designated include crimes of moral

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turpitude, INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(1), and violation of any law or
regulations related to a controlled substance. INA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(2).
Notwithstanding the jurisdictional limits imposed by Congress, courts of appeals retain
jurisdiction to review “constitutional claims or questions of law raised upon a petition for review,”
even in cases where removal is ordered based on crimes of moral turpitude or violations involving
controlled substances. INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D); see Nwagbo v. Holder, 571
F.3d 508, 510 (6th Cir. 2009) (“[W]e retain jurisdiction to consider the limited question of whether
the petitioner is removable as a matter of law.”) (quoting Patel v. Ashcroft, 401 F.3d 400, 406 (6th
Cir. 2005)).
The United States argues that this court lacks jurisdiction over Tota-Maharaj’s petition for
review on two of his three counts of removability—conviction of a crime involving moral turpitude
and violation of a controlled substance law. INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C). Tota-
Maharaj does not challenge his underlying criminal convictions, nor does he raise any constitutional
claims for relief. He makes no arguments that this court has jurisdiction over those two counts, and
no case law has been found to support such a proposition. Absent an exception, this court lacks
jurisdiction to review the order of removal based on these two charges of removability.
Although we do retain jurisdiction to review removal orders based on a charge that an alien
is present in the United States without being admitted or paroled, INA § 212(a)(6)(A)(I), we need
not reach the merits of this charge, because Tota-Maharaj must be removed from the United States
on the other two counts, which we lack jurisdiction to reverse or remand. The petition for review
is therefore DENIED.

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