Douglas v. Atty Gen USA

Opinion

Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

7-8-2004

Douglas v. Atty Gen USA Precedential or Non-Precedential: Precedential

Docket No. 04-1906

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This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. PRECEDENTIAL SLOVITER, Circuit Judge.

UNITED STATES COURT OF The motion by the petitioner APPEALS FOR THE THIRD CIRCUIT Hensworth Douglas for a stay of removal was routed to a motion panel of this court in accordance with our procedure. Douglas sought the stay of removal No. 04-1906 pending our final decision on his petition for review of the Board of Immigration Appeals’ (“BIA”) order denying his application for cancellation of removal HENSWORTH DOUGLAS, under 8 U.S.C. § 1229b(a) and ordering his removal to Jamaica. Respondent, the Petitioner Attorney General, has filed a motion to dismiss Douglas’ petition for lack of v. subject matter jurisdiction. The central question before us on the merits is whether JOHN ASHCROFT, ATTORNEY we may review a final order of the BIA GENERAL OF THE UNITED STATES based on two alternative legal grounds OF AMERICA, when we are without jurisdiction to review the order based on one of those grounds. Respondent This appeal also gives us the opportunity to set forth for the first time in a precedential opinion the standard that we Petition for Review of an Order follow in ruling on a motion for a stay of of the Board of Immigration Appeals removal pending a decision on the Petition (A40-387-915) for Review.

Sur Motion Submitted Under Third Background Circuit LAR 34.1(a) May 19, 2004

Before: SLOVITER, McKEE, and Douglas entered the United States BECKER, Circuit Judges with a valid visa in 1987. He received lawful permanent resident status sometime (Filed: July 8, 2004 ) thereafter. Douglas was convicted under Delaware law in October 2002 for trafficking of cocaine. In June 2003, the Department of H omeland S ecurity (“DHS”) issued a Notice to Appear OPINION OF THE COURT charging Douglas with being subject to removal from the United States, pursuant The IJ, in an oral decision dated to 8 U.S.C. § 1227 (a)(2)(A)(iii) and November 20, 2003, found that Douglas’ (a)(2)(B)(i), as an alien convicted of an “sexual misconduct” conviction under “aggravated felony” as well as of certain New York state law did not constitute an controlled substance offenses. Douglas “aggravated felony” under the Immigration admitted to the Delaware conviction and Naturalization Act (“INA”). Having during a hearing before an Immigration determined that the Section 130.20 of the Judge (“IJ”), who found Douglas to be an New York Penal Code is a divisible statute alien subject to removal under § that covers both aggravated felony and 1227(a)(2)(B)(i). The IJ, however, ruled non-aggravated felony offenses as defined that § 1227(a)(2)(A)(iii) is inapplicable to by 8 U.S.C. § 1101(a)(43)(A), the IJ ruled Douglas on the ground that the underlying that the DHS failed to establish through Delaware drug conviction did not evidence that Douglas’ conviction under constitute an “aggravated felony” based on Section 130.20 was pursuant to a portion our decision in Gerbier v. Holmes, 280 of the section that qualifies as an F.3d 297 (3d Cir. 2002). IJ’s Op. at 1-2. “aggravated felony.” IJ’s Op. at 9-11. Neither Douglas nor the DHS challenged The IJ also rejected the DHS’s contention these findings before the BIA or before us that Douglas’ “sexual misconduct” here. conviction qualifies as a crime of moral turpitude. IJ’s Op. at 10-11. Having thus The DHS subsequently amended the Notice to Appear, charging Douglas with being subject to removal, again pursuant to § 1227(a)(2)(A)(iii), as an sexual intercourse with alien convicted of the “aggravated felony” another person without of “murder, rape, or sexual abuse of a such person’s consent; or minor” under 8 U.S.C. § 1101(a)(43)(A). 2. He or she engages in This charge was based on Douglas’ 1992 deviate sexual intercourse conviction under New York State Penal with another person Law Sec tion 130 .20 for “sexual without such person’s misconduct,” a misdemeanor under New consent; or York state law.1 3. He or she engages in sexual conduct with an animal or a dead human 1 New York State Penal Law body. Section 130.20, at the time of Douglas’ conviction, states: Sexual misconduct is a class A A person is guilty of sexual misdemeanor. misconduct when: N.Y. Penal Law § 130.20 (McKinney 1. He or she engages in 1992).

2 determined that Douglas has not DHS, which reflected that Douglas committed an “aggravated felony,” the IJ engaged in “nonconsensual sexual ruled that Douglas was eligible to apply intercourse with a 14-year-old female” for cancellation of removal under 8 U.S.C. victim. BIA’s Op. at 2. It found that § 1229b(a).2 The IJ then granted the because this description of Douglas’ application for cancellation of removal offense fulfilled the necessary elements for after she balanced the hardship to Douglas “sexual abuse of a minor” under 8 U.S.C. and his family members against his § 1101(a)(43)(A), as defined by the BIA’s criminal history. decision in Matter of Rodriguez- Rodriguez, 22 I. & N. Dec. 991 (BIA On appeal, the BIA vacated the IJ’s 1999), Douglas’ conviction falls within the decision regarding the “aggravated felony” portion of New York Penal Law Section charge and ordered Douglas’ removal from 130.20 that qualified as an “aggravated the United States. The BIA ruled that felony” under the INA, which rendered Douglas’ 1992 “sexual misconduct” Douglas ineligible for cancellation of conviction qualified as an “aggravated removal under 8 U.S.C. § 1229b(a).3 The felony” based on the charging instrument BIA therefore ruled that Douglas’ from that conviction, as submitted by the “applications for relief from removal are pretermitted and [Douglas] is ordered 2 removed to Jamaica.” BIA’s Op. at 3. 8 U.S.C. § 1229b(a) states: (a) Cancellation of removal Douglas filed his petition for for certain permanent review on April 2, 2004, challenging only residents. the BIA’s ruling with respect to the The Attorney General may “aggravated felony” issue. He thereafter cancel removal in the case filed an emergency motion on May 4, 2004 of an alien who is to stay his removal pending our review of inadmissible or deportable his petition. The Attorney General from the United States if responded with a motion to dismiss the alien – Douglas’ petition based on our lack of (1) has been an alien j u r is d i c ti o n u n d e r 8 U .S.C . § lawfully admitted for permanent residence for 3 not less than 5 years, The BIA also found that Douglas’ (2) has resided in the 2002 Delaware controlled substance United States continuously conviction “render[ed] him ineligible for for 7 years after having a waiver under former section 212(c) of been admitted in any status, the [INA], 8 U.S.C. § 1182(c), despite and INS v. St. Cyr, 533 U.S. 289 (2001) . . . (3) has not been convicted .” Douglas raises no issue with respect of any aggravated felony. to that portion of the BIA’s decision.

3 1252(a)(2)(C), 4 to review the BIA’s order preliminary injunction in examining of removal against Douglas due to the IJ’s requests for a stay of removal. Under the finding that Douglas’ Delaware drug preliminary injunction s tand ard, a offense conviction qualified as a petitioner requesting a stay of removal controlled substance offense under 8 must demonstrate (1) a likelihood of U.S.C. § 1227(a)(2)(B)(i). We granted success on the merits of the underlying Douglas’ motion to stay removal so that petition; (2) that irreparable harm would we would have an opportunity to consider occur if a stay is not granted; (3) that the the legal issue with respect to our potential harm to the moving party jurisdiction, but we will now dismiss outweighs the harm to the opposing party Douglas’ petition for review for lack of if a stay is not granted; and (4) that the subject matter jurisdiction. granting of the stay would serve the public interest. Arevalo v. Ashcroft, 344 F.3d 1, 7-8 (1st Cir. 2003); Mohammed v. Reno, Discussion 309 F.3d 95, 100 (2d Cir. 2002); Bejjani v. INS, 271 F.3d 670, 688-89 (6th Cir. 2001). The Ninth Circuit applies a two-pronged A. Douglas’ Motion for Stay of standard of review that provides that a stay Removal of removal should be granted when an alien shows “either (1) a probability of As we noted above, we have not success on the merits and the possibility of previously addressed the standard of irreparable injury, or (2) that serious legal review for assessing a motion to stay questions are raised and the balance of removal of an alien pending judicial hardships tips sharply in the petitioner’s review. Most courts of appeals, however, favor.” Andreiu v. Ashcroft, 253 F.3d 477, have applied the standard for granting a 483 (9th Cir. 2001) (en banc) (quoting Abbassi v. INS, 143 F.3d 513, 514 (9th 4 Cir. 1998)). This standard collapses the 8 U.S.C. § 1252(a)(2)(C) states: traditional four-prong test. For the sake of Notwithstanding any other providing both linguistic and analytic provision of law, no court clarity, we adhere to the traditional four- shall have jurisdiction to part framework for the preliminary review any final order of injunction standard. removal against an alien who is removable by The Court of Appeals for the reason of having Eleventh Circuit, however, applies a more committed a criminal stringent standard that requires petitioners offense covered in section to produce “clear and convincing 1182(a)(2) or evidence” that the execution of the 1227(a)(2)(A)(iii), (B), (C), removal order is prohibited by law. Weng or (D) of this title . . . .

4 v. United States Att’y Gen., 287 F.3d Circuit that the “clear and convincing 1335, 1337 (11th Cir. 2002). That court evidence” standard is inapplicable to based its holding on the language of 8 motions to stay removal pending judicial U.S.C. § 1252(f)(2), which prohibits courts review of the underlying petition. See from enjoining the removal of any alien Andreiu, 253 F.3d at 480-83. As 8 U.S.C. pursuant to a final order “unless the alien § 1252(b)(3)(B), which in effect requires shows by clear and convincing evidence petitioners subject to a removal order to that the entry or execution of such order is affirmatively seek a stay of removal from prohibited as a matter of law.” Weng, 287 the reviewing court, provides no standard F.3d at 1338. But see Bonhomme-Ardouin for reviewing such motions to stay v. United States Att’y Gen., 291 F.3d removal, we will apply the traditional 1289, 1290-91 (11th Cir. 2002) (Barkett, standard for reviewing a motion to stay an J., joined by Wilson, J., concurring) administrative agency order pending (stating that “Weng applied the wrong judicial review of the underlying petition standard for a motion for temporary stay of or appeal – the preliminary injunction deportation pending appeal” and urging standard.5 the court to reconsider the issue en banc). See generally Kenyeres v. Ashcroft, 538 U.S. 1301, 1303-05 (2003) (discussing B. Douglas’ Petition for Review and differing standards applied by various the Attorney General’s Motion to Courts of Appeals but declining to decide Dismiss for Lack of Jurisdiction the issue). We now join the First, Second, and In the usual case, we would turn to Sixth Circuits in holding that the proper application of the four-part test for a stay standard of review for motions to stay removal is the traditional four-part test used for adjudicating motions for 5 preliminary injunction, as we set forth We realize that the threshold for above. The opinions in Mohammed, 309 meeting the “likelihood of success on the F.3d at 99-100, and in Arevalo, 344 F.3d merits” requirement is somewhat vague at 7-9, both set forth clear multi-level and open to various interpretations. analyses of why 8 U.S.C. § 1252(f)(2) Were we to reach the issue in this case, it applies only to permanent prohibitions of would be relevant that the IJ and the BIA removal and not to motions to stay the differed in their rulings with respect to execution of a removal order, and we are Douglas’ 1992 sexual misconduct persuaded by the reasoning in those conviction as an aggravated felony, and opinions to reject the Eleventh Circuit’s this court had not previously reviewed “clear and convincing evidence” this issue. In view of our decision on requirement. We also agree with the Ninth jurisdiction, this is not the appropriate case to analyze that issue.

5 of removal discussed above, starting with under 8 U.S.C. § 1252(a)(2)(C), we have Douglas’ likelihood of success on his no jurisdiction to review Douglas’ petition petition for review of the BIA’s ruling on for review because of Douglas’ controlled the aggravated felony issue. Here, substance conviction, even though however, we must first address the Douglas’ petition challenges only the Attorney General’s motion to dismiss BIA’s determination that the 1992 “sexual Douglas’ petition due to lack of subject misconduct” conviction qualifies as an matter jurisdiction because each court “aggravated felony” under the INA. must first satisfy itself of its own However, we have jurisdiction pursuant to jurisdiction. United States v. Touby, 909 8 U.S.C. § 1252(a)(1) and (b) “to F.2d 759, 763 (3d Cir. 1990). determine our jurisdiction under [8 U.S.C.] § 1252(a)(2)(C).” Drakes v. Zimski, 240 The BIA vacated only the portion of F.3d 246, 247 (3d Cir. 2001). the IJ’s decision holding that Douglas’ 1992 New York sexual misconduct We have previously noted the conviction was not an “aggravated felony” jurisdictional question of reviewing one of and that Douglas was therefore eligible for two alternative reasons supporting a final cancellation of removal; the BIA did not order of removal when the other reason, review the IJ’s decision regarding which is not challenged by the petitioning Douglas’ 2002 Delaware controlled party, deprives us of jurisdiction to review substance conviction, which also rendered the same order of removal. In Nugent v. Douglas subject to removal under the INA. Ashcroft, 367 F.3d 162 (3d Cir. 2004), we Douglas, in fact, did not challenge before framed the question in the following the BIA or here the IJ’s finding that he is manner: “If we do not have jurisdiction to removable from the United States on the review the order based on one of the ground of his Delaware drug conviction. reasons . . . what authority do we have to Undoubtedly, Douglas follows that course review another reason supporting the order because he would be qualified to seek the . . . ?” Id. at 166-67. We did not have to discretionary relief of cancellation of address that question in Nugent, however, removal if he is found removable only on because the petitioner in that case had also the controlled substance conviction but not filed a petition for a writ of habeas corpus if he has a prior conviction that qualifies as under 28 U.S.C. § 2241 challenging the an “aggravated felony.” 8 U.S.C. § BIA’s ruling on the same grounds as that 1229b(a). The scope of our review, in his original petition for review in a therefore, includes both the BIA’s decision petition. The subsequent consolidation of and the portion of the IJ’s decision that the original petition for review and the was left unchallenged in front of the BIA. habeas corpus petition allowed us to See Xie v. Ashcroft, 359 F.3d 239, 242 (3d address the merit of Nugent’s argument in Cir. 2004). our review of the habeas corpus petition. Because Douglas has not filed a habeas The Attorney General contends that

6 corpus petition addressing the same We therefore hold that we have no argument he has presented in his petition jurisdiction to review the BIA’s order of for review here, the jurisdictional removal under 8 U.S.C. § 1252(a)(2)(C) argument is now properly before us. Section 1252(a)(2)(C) provides that no court has jurisdiction to review “any the same jurisdictional issue. It also final order of removal” against an alien concluded that it had no jurisdiction to who is found removable for having review an alien’s petition to review a committed a criminal offense covered by, final order of removal based on the among others, 8 U.S.C. § 1227(a)(2)(B). alien’s uncontested controlled substance T h e pla i n lang uage of se ctio n convictions, reasoning: 1252(a)(2)(C) deprives us of jurisdiction to Although the order of review a final removal “order” from the removal cites two bases for BIA rather than the ground on which the removal – i.e., Flores’s removal order was based. This is 1991 and 1996 marijuana consistent with the INA’s overall structure convictions and Flores’s of allowing for “[j]udicial review of a final 1972 burglary conviction – order of removal,” 8 U.S.C. § 1252(a)(1), there is only one “order” to rather than particular reasons supporting be reviewed. Once we such order. See also § 1252(b), (d), (g). determine that the order of Indeed, if we reject the BI A’s removal before us is based determination that Douglas’ 1992 independently on Flores’s conviction of sexual misconduct qualifies controlled substance as an “aggravated felony,” the BIA’s final offenses covered by 8 order of removal remains intact based on U.S.C. § 1227(a)(2)(B), the Douglas’ 2002 drug conviction; the BIA’s jurisdiction-stripping order of removal stand s on th e provisions of § 1252 independent basis of the other reason clearly apply, and it does which is not subject to judicial review not matter for the purposes under the INA. Therefore Douglas, having of determining the scope of conceded his removability from the United our jurisdiction under § States based on the 2002 conviction, does 1252(a)(2)(C) that the not actually petition us to review a “final order of removal is also order of removal” which is, based on his based on an aggravated concession, not subject to judicial review.6 felony conviction that Flores argues is not actually covered by 8 6 In Flores-Garza v. INS, 328 F.3d U.S.C. § 1227(a)(2)(A)(iii). 797, 802 (5th Cir. 2003), the Court of Appeals in the Fifth Circuit confronted Id. (emphasis in original).

7 based on his 2002 Delaware controlled substance conviction, and we will grant the Attorney General’s motion to dismiss. We emphasize, however, that our decision does not foreclose Douglas of the opportunity to seek judicial review of the substantive arguments contained in his petition for review through a petition for habeas corpus filed in an appropriate district court pursuant to 28 U.S.C. § 2241. See Nugent, 367 F.3d at 166-67. In light of our decision, we will vacate the stay of removal that we entered as an expediency so that we could consider the jurisdictional issue raised by the Attorney General.

Conclusion

For the foregoing reason, we will grant the Attorney General’s motion to dismiss for lack of jurisdiction and dismiss Douglas’ petition for review.