Xavier COBBLAH, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee, 33 F. App'x 89

OPINION PER CURIAM. Federal prisoner Xavier Cobblah, a native and citizen of Ghana, appeals the district court’s denial of his motion to reconsider the dismissal of his petition under 28 U.S.C. § 2241 (1994) as frivolous. Cobblah, who is subject to a 1998 order of removal based on his guilty plea to an aggravated felony in 1995, takes issue with the district court’s finding that he is ineligible for relief from removal under 8 U.S.C. § 1182(c) (1994) (repealed 1996).

We have reviewed the record and the district court’s opinion and find that Cobblah is indeed ineligible for such relief because Cobblah has served more than five years of his ten-year sentence. See 8 U.S.C. § 1182(c); INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 2293, 150 L.Ed.2d 347 (2001); Attwood v. Ashcroft, 260 F.3d 1, 2 & n. 1 (1st Cir.2001) (noting that eligibility for relief under 8 U.S.C. § 1182(

c) turns on time actually served by alien rather than sentence received). Cobblah next maintains that he was denied his right of appeal from the Immigration Judge to the Board of Immigration Appeals to pursue relief under 8 U.S.C. § 1182(c), (

h) in violation of his right to due process under the Fifth Amendment and in violation of his right to equal protection. Because Cobblah failed to raise this issue before the district court, we find that it has been waived. United States v. One 1971 Mercedes Benz, 542 F.2d 912, 915 (4th Cir.1976). Finally, Cobblah asserts that the district court failed to address his claim for relief under 8 U.S.C. § 1182(h). Our review of the record discloses that the claim was indeed raised and that the district court did not address it.

As this matter was dismissed on frivolity review without any response from the Government or other supplementation of the record, we find the record is inadequate for us to make a determination on the claim at this juncture. Accordingly, we remand this issue to the district court for farther proceedings. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED IN PART, REMANDED IN PART.