McCarthy v. Mukasey , 305 F. App'x 670 ( 2009 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 08-1649
DENNIS A. MCCARTHY,
Petitioner,
v.
MICHAEL B. MUKASEY, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Torruella and Howard, Circuit Judges.
Dennis A. McCarthy on brief pro se.
Corey L. Farrell, Office of Immigration Litigation, Gregory G.
Katsas, Assistant Attorney General, and Greg D. Mack, Senior
Litigation Counsel, on brief for respondent.
January 9, 2009
Per Curiam. Pro se petitioner Dennis A. McCarthy seeks
review of a Board of Immigration Appeals (BIA) decision upholding
a removal order issued by an immigration judge. McCarthy was
ordered removed to Jamaica on the ground that he was an alien
subject to removal because of his conviction for a federal crime
that qualified as an aggravated felony and a controlled substance
offense.1 See 8 U.S.C. § 1227(a)(2)(A)(iii) (providing for the
removal of aliens "convicted of an aggravated felony"); id. (B)(i)
(same for aliens convicted of, inter alia, federal controlled
substance violations "other than a single offense involving
possession for one's own use of 30 grams or less of marijuana").
Although we lack jurisdiction to review removal orders
against criminal aliens, see 8 U.S.C. § 1252(a)(2)(C), we have
limited jurisdiction to consider "constitutional questions or
questions of law." Id. § 1252(a)(2)(D). On appeal, McCarthy
raises such questions, and we review them de novo. See Abou-Haidar
v. Gonzales, 437 F.3d 206, 207 (1st Cir. 2006) (so stating with
respect to the question whether an alien has been naturalized);
accord Julce v. Mukasey, 530 F.3d 30, 33 n.3 (1st Cir. 2008)
(whether a conviction constitutes an aggravated felony); Urena-
Ramirez v. Ashcroft, 341 F.3d 51, 53 (1st Cir. 2003) (whether a
1
On November 4, 2008, the government filed a notice of intent
to remove McCarthy "on or after November 20, 2008." Given the
collateral consequences of being removed as an aggravated felon,
McCarthy's removal would not moot his petition for review. Leitao
v. Reno, 311 F.3d 453, 456 (1st Cir. 2002).
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conviction constitutes a controlled substance offense); González-
Mesías v. Mukasey, 529 F.3d 62, 64 (1st Cir. 2008) (constitutional
questions). Finding no merit in any of McCarthy's arguments, we
deny the petition in part and otherwise dismiss it for lack of
jurisdiction for the following reasons.
1. McCarthy's strongest point in support of his argument
that he is a United States national--and not an alien subject to
removal--is that he is a lawful permanent resident who swore
allegiance to this country and filed an application for
citizenship. But McCarthy's failure to complete the naturalization
process dooms his argument. See Abou-Haidar, supra, 437 F.3d at
207-08. We have rejected the reasoning of the Fourth Circuit case
that McCarthy relies on, id. at 207 n.4 (disagreeing with United
States v. Morin, 80 F.3d 124, 126 (4th Cir. 1996)), and the Fourth
Circuit itself has concluded that Morin is no longer authoritative.
See Fernandez v. Keisler, 502 F.3d 337, 347-48 (4th Cir. 2007)
(majority opinion), cert. denied, 129 S. Ct. 65 (2008).
2. McCarthy's conviction for possessing with intent to
distribute marijuana in violation of 21 U.S.C. § 841(a)(1)--for
which he received a 121-month prison term, as his written criminal
judgment shows--satisfied the prerequisites in 8 U.S.C. §
1101(a)(43)(B), and so constitutes an aggravated felony. See id.(defining an "aggravated felony" to include "a drug trafficking
crime (as defined in section 924(c) of Title 18)"); 18 U.S.C. §
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924(c) (defining "drug trafficking crime" to mean "any felony
punishable under the Controlled Substances Act (21 U.S.C. § 801 et
seq.)"). McCarthy's arguments to the contrary are foreclosed by
our precedent. See Conteh v. Gonzales, 461 F.3d 45, 59, 62 (1st
Cir. 2006) (majority opinion) (concluding that in removal
proceedings the government need only show that an alien has been
convicted of a crime involving "every element" of the relevant §
1101(a)(43) offense and may rely on the conviction records to meet
its burden of proof), cert. denied, 127 S. Ct. 3003 (2007); Julce,
supra, 530 F.3d at 35-36 (concluding that an alien in removal
proceedings has the burden of showing that the marijuana
misdemeanor described in 21 U.S.C. § 841(b)(4) applies; and that if
he fails to meet his burden, then a § 841(a)(1) conviction is
deemed "punishable as a felony" under § 841(b)(1)(D)).
3. The government bears the burden of proving that the
statutory controlled substance exception for "a single offense
involving possession for one's own use of 30 grams or less of
marijuana" does not apply. Medina v. Ashcroft, 393 F.3d 1063, 1065
n. 5 (9th Cir. 2005) (citing Sandoval v. INS, 240 F.3d 577, 581
(7th Cir. 2001)). Contrary to McCarthy's contention, it satisfied
that burden by submitting McCarthy's conviction records documenting
his 121-month sentence. His sentence would have been capped at 60
months if his offense had involved "30 grams or less" of marijuana.
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See § 841(b)(1)(D) (providing for a statutory maximum of 5 years
for offenses involving "less than 50 kilograms" of marijuana).
4. For present purposes, we assume that McCarthy
properly exhausted his constitutional and international law
arguments opposing his removal on the ground that it would deny him
his right to "familial integrity." See Royal Siam Corp. v.
Chertoff, 484 F.3d 139, 144 (1st Cir. 2007) (indicating that this
court has sometimes bypassed problematical jurisdictional questions
in immigration cases where "precedent clearly adumbrates the result
on the merits"). A recent decision by this court shows that
McCarthy cannot prevail on his claims. See Payne-Barahona v.
Gonzales, 474 F.3d 1, 2-4 (1st Cir. 2007) (concluding that an
"otherwise valid deportation" does not violate constitutional due
process, that the international conventions at issue here do not
have "the force of domestic law," and that, in any event, their
conflicting provisions would give way to the "clear intent of
Congress" found in the immigration statute's removal provisions).
The petition for review is denied in part and otherwise
dismissed for lack of jurisdiction.
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