Andriy Mihus v. Jefferson Sessions, III

NOT RECOMMENDED FOR PUBLICATION File Name: 18a0113n.06 No. 17-3891 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED ANDRIY MIHUS, ) Mar 06, 2018 ) DEBORAH S. HUNT, Clerk Petitioner, ) ) v. ) ON PETITION FOR REVIEW ) OF AN ORDER OF THE JEFFERSON B. SESSIONS, III, U.S. Attorney ) BOARD OF IMMIGRATION General, ) APPEALS ) Respondent. ) BEFORE: COLE, Chief Judge; WHITE and BUSH, Circuit Judges. WHITE, Circuit Judge. Petitioner Andriy Mihus, a lawful permanent resident, seeks review of a final order of removal, arguing that the Board of Immigration Appeals (BIA) erred in finding him removable based on controlled-substances convictions under Ohio law. Mihus further argues that the BIA erred by denying his request for asylum, withholding of removal, and protections under the United Nations Convention Against Torture (CAT). We affirm the BIA’s removability finding; we lack jurisdiction to consider the remainder of Mihus’s claims. I. Background Petitioner Andriy Mihus was born in Lviv, Ukraine, on February 2, 1994, and is a citizen of Ukraine. Mihus arrived in the United States in 2002 as a lawful permanent resident, along No. 17-3891 Mihus v. Sessions with his parents and brother. Mihus’s mother and father live in the United States, but his brother and grandparents are in Ukraine. On March 26, 2013, Mihus was convicted under Ohio state law of attempted possession of heroin. Mihus received a sentence of five days of incarceration with credit for time served. The Department of Homeland Security (DHS) initiated removal proceedings against Mihus but, on September 5, 2013, an Immigration Judge (the IJ) granted cancellation of removal after Mihus promised to no longer use drugs. On June 13, 2016, however, Mihus was convicted of two Ohio drug offenses: possession of Adderall and attempted possession of heroin. A. Proceedings Before the Immigration Judge On September 13, 2016, DHS initiated removal proceedings. DHS advanced the following factual allegations supporting removal: 1. You are not a citizen or national of the United States; 2. You are a native of the Ukraine and a citizen of the Ukraine; 3. You were admitted to the United States at Detroit, Michigan on June 11, 2002 as an immigrant (DV3); 4. You were, on March 26, 2013, convicted in Cuyahoga County Common Pleas Court, Cleveland, Ohio for the offense of Attempted Drug Possession (MI), to wit Heroin, in violation of sections 2923.02/2925.11 A of the Ohio Revised Code, case number CR-13-570882; 5. You were, on September 5, 2013, granted Cancellation of Removal under section 240A by the Immigration Judge; 6. On February 24, 2016, you were indicted under case number CR-603338 [sic], for Drug Possession in violation of ORC 2925.11(A), involving heroin or a compound, mixture, preparation, or substance containing heroin; 7. On May 9, 2016, under case number CR-16-60338, your indictment was amended to reflect Attempted Drug Possession. No other amendments to your indictment under CR-16-60338 were made; -2- No. 17-3891 Mihus v. Sessions 8. On June 13, 2016, you were convicted under case number CR-16-60338 of ...

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