Hanna v. Attorney General of the United States ( 2012 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-1590
___________
ELIE MICHEL HANNA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A094-166-143)
Immigration Judge: Honorable Susan G. Roy
____________________________________
Submitted under Third Circuit LAR 34.1(a)
on August 8, 2012
Before: SMITH, HARDIMAN and ROTH, Circuit Judges
(Opinion filed: October 11, 2012)
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OPINION
_________
PER CURIAM
Elie Michel Hanna seeks review of the denial of his motion to reopen immigration
proceedings. Lacking jurisdiction, we will dismiss the petition for review.
Hanna is a native and citizen of Lebanon. In 2008, he was convicted of a New
Jersey drug offense (a violation of N.J. Stat. Ann. § 2C:35-7). Hanna was thereafter
charged with being removable from the United States as an aggravated felon (8 U.S.C.
§ 1227(a)(2)(A)(iii)). Appearing before an immigration judge (IJ), Hanna conceded the
charges against him and declined to request relief from removal, at which point the IJ
entered an order of removal and noted that both parties had waived their appellate rights.
Some time later, Hanna filed a motion proceedings, arguing that his New Jersey
trial counsel had been ineffective and pointing out that he had recently initiated a state
collateral attack on his conviction. The IJ denied the motion to reopen and the Board of
Immigration Appeals (BIA) dismissed Hanna’s appeal. Hanna now seeks review in this
Court.
We have jurisdiction under 8 U.S.C. § 1252(a) to review final orders of removal;
however, that jurisdiction is not without limits. Because Hanna is a criminal alien
removable under 8 U.S.C. § 1227(a)(2)(A)(iii), we may review only “constitutional
claims or questions of law.” 8 U.S.C. § 1252(a)(2)(C)–(D). These claims and questions
must be “colorable,” meaning they cannot be insubstantial, frivolous, or based on an
otherwise-unreviewable ground “dressed up” in legal clothing. See Pareja v. Att’y Gen.,
615 F.3d 180, 187 (3d Cir. 2010). Another limitation on our jurisdiction, 8 U.S.C. §
1252(g), prevents the review of claims “arising from the decision or action by the
Attorney General to commence proceedings, adjudicate cases, or execute removal
orders.” Finally, we cannot review claims that were not raised before the agency. 8
U.S.C. § 1252(d); Hoxha v. Holder, 559 F.3d 157, 159 n.3 (3d Cir. 2009).
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None of the claims raised in this petition for review is colorable; indeed, each
suffers from readily identifiable jurisdictional defects. First, Hanna assails the
ineffectiveness of trial counsel in his New Jersey criminal proceedings. But “a challenge
to an alien’s criminal conviction, upon which a removal order is based, is beyond the
scope of removal proceedings.” Vasiliu v. Holder, 651 F.3d 1185, 1187 (10th Cir. 2011);
accord Drakes v. INS, 330 F.3d 600, 606 (3d Cir. 2003). The pendency of a collateral
attack on a conviction is not relevant. Paredes v. Att’y Gen., 528 F.3d 196, 198–99 (3d
Cir. 2008). To the extent that Hanna attacks the conduct of his prior immigration
counsel, we agree with the Government that he failed to allege such ineffectiveness
before the agency, and the claim is therefore unexhausted and barred. Hanna’s final
argument, urging the exercise of prosecutorial discretion, is precisely the sort of claim
proscribed by 8 U.S.C. § 1252(g). See Chehazeh v. Att’y Gen., 666 F.3d 118, 134 (3d
Cir. 2012) (citing Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471,
485 (U.S. 1999)); see also S-Cheng v. Ashcroft, 380 F.3d 320, 324 (8th Cir. 2004).
In sum, as no claim within this petition for review is either colorable or permitted
by statute, we lack jurisdiction. Accordingly, the petition will be dismissed.
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