Richard Martin v. Attorney General United States ( 2015 )

PS4-052 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 14-3148
___________
RICHARD MARTIN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A077-033-877)
Immigration Judge: Honorable Margaret R. Reichenberg
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 2, 2015
Before: FISHER, KRAUSE and VAN ANTWERPEN, Circuit Judges
(Opinion filed: February 4, 2015)
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OPINION*
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PER CURIAM
Richard Martin, a citizen of Jamaica, was admitted to the United States in 1990,
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
with authorization to remain for six months. In 2013, Martin was convicted in New
Jersey of possession of more than 50 grams of marijuana or 5 grams of hashish, in
violation of N.J. Stat. Ann. § 2C:35-10(A)(3). The Government charged Martin as
removable for overstaying his period of admission, Immigration and Nationality Act
(INA) § 237(a)(1)(B) [8 U.S.C. § 1227(a)(1)(B)], and for having been convicted of a
controlled substance offense, INA § 237(a)(2)(B)(i) [8 U.S.C. § 1227(a)(2)(B)(i)].
Martin admitted the factual allegations in the Notice to Appear and applied for
withholding of removal and protection under the United Nations Convention Against
Torture (CAT). He alleged that he was persecuted on account of his imputed political
opinion as the son of a Jamaican Labor Party (JLP) supporter.
The Immigration Judge (IJ) concluded that Martin was not credible because his
“oral testimony . . . differ[ed] from his story in his application and statement.” The IJ
also determined that Martin failed to provide “reasonably available corroborative
documents.” Consequently, the IJ held that Martin had not established eligibility for
withholding of removal. The IJ also stated that Martin was ineligible for CAT protection
because the record did not demonstrate that the Jamaican government intended to torture
him or would acquiesce in or exhibit willful blindness toward his torture. The Board of
Immigration Appeals (BIA or Board) dismissed Martin’s appeal. Martin filed a pro se
petition for review of the BIA’s decision.
2
We generally lack jurisdiction to review a final order of removal against a criminal
alien, like Martin, who is removable for having committed an offense covered in INA
§ 237(a)(2). INA § 242(a)(2)(C) [8 U.S.C. § 1252(a)(2)(C)]. We retain jurisdiction,
however, to review constitutional claims, “pure questions of law,” and “issues of
application of law to fact, where the facts are undisputed and not the subject of
challenge.” Kamara v. Att’y Gen., 420 F.3d 202, 211 (3d Cir. 2005). “[F]actual or
discretionary determinations continue to fall outside [our] jurisdiction . . . .”
Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d Cir. 2006). In addition, our jurisdiction
is limited to claims in which a petitioner “has exhausted all administrative remedies
available . . . as of right.” INA § 242(d)(1) [8 U.S.C. § 1252(d)(1)]; Abdulrahman v.
Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003).
Martin argues that his New Jersey conviction does not constitute a controlled
substance offense under INA § 237(a)(2)(B)(i).1 Although we generally would have
jurisdiction to review such a claim, see Rojas v. Att’y Gen., 728 F.3d 203, 207 (3d Cir.
2013), the issue has not been exhausted here. Martin did not contest his removability on
appeal to the Board, INA § 242(d)(1), and the Board did not consider the issue sua
sponte. See Lin v. Att’y Gen., 543 F.3d 114, 126 (3d Cir. 2008). Similarly, Martin did
1
Martin also asserts that he was not convicted of an aggravated felony, INA
§ 237(a)(2)(A)(iii) [8 U.S.C. § 1227(a)(2)(A)(iii)], or of a crime involving moral
turpitude, INA § 237(a)(2)(A)(i) [8 U.S.C. § 1227(a)(2)(A)(i)]. This argument is
misplaced, however, because Martin was not found removable or ineligible for relief
based on those grounds.
3
not exhaust his claim that he is eligible for cancellation of removal, see INA § 240A(a) [8
U.S.C. § 1229b(a)], or his assertion that his attorney provided ineffective assistance.
Furthermore, the Board properly concluded that Martin was not eligible for a waiver of
inadmissibility because his conviction did not “relate[] to a single offense of simple
possession of 30 grams or less of marijuana.” INA 212(h) [8 U.S.C. § 1182(h)]. Finally,
because Martin’s brief fails to allege any error in the adverse credibility conclusion or in
the determination that he did not provide reasonably available corroborative evidence, he
waived any claims relating to withholding and CAT relief.2 See Chen v. Ashcroft, 381
F.3d 221, 235 (3d Cir. 2004).
Accordingly, we will deny the petition for review.
2
Even if not waived, we would not have jurisdiction to review any challenge to the
factual aspects of the adverse credibility and failure-to-corroborate determinations. See
Abulashvili v. Att’y Gen., 663 F.3d 197, 202 (3d Cir. 2011) (adverse credibility findings
are factual findings); Abraham v. Holder, 647 F.3d 626, 632 (7th Cir. 2011) (IJ’s
conclusion that applicant lacked sufficient credible evidence to meet standard for
untimely asylum claim not a question of law).
4