Douglas v. Atty Gen USA ( 2004 )

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Precedential or Non-Precedential: Precedential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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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.
8