Srinivasan

MEMORANDUM **

Devakumarn Srinivasan, a native and citizen of India, appeals the district court’s denial of his motion to amend his 28 U.S.C. § 2241 petition challenging his order of removal. We have jurisdiction pursuant to 28 U.S.C. § 2253 , and we affirm.

Srinivasan contends that the district court erred in denying his motion to amend his § 2241 petition on the ground that he had not exhausted the argument he sought to incorporate. We have reviewed the record and conclude that Srinivasan has not exhausted the issue he seeks to incorporate. See Dhangu v. INS, 812 F.2d 455, 460 (9th Cir.1987) (“Ordinarily, an alien is required to exhaust his adminis *51 trative remedies by first appealing to the [the Board of Immigration Appeals (“BIA”) ] before petitioning this court. This is a jurisdictional requirement.”).

Srinivasan next contends that he should be excused from the exhaustion requirement because exhaustion would be futile. We disagree. Contrary to Srinivasan’s assertions, the BIA’s position on the question at issue is not “already set.” Sun v. Ashcroft, 370 F.3d 932, 943-44 (9th Cir.2004). While Srinivasan is correct that it is not always necessary to raise constitutional…