St. Hill v. Atty Gen USA ( 2007 )


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  •                                                                                                                            Opinions of the United
    2007 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    3-29-2007
    St. Hill v. Atty Gen USA
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 04-4191
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    http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1413
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    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    _______________
    No. 04-4191
    _______________
    SIDNEY ST. HILL,
    Appellant,
    v.
    ALBERTO GONZALES, ATTORNEY GENERAL
    OF THE UNITED STATES;* BICE.
    _______________
    On Appeal From the United States District Court
    for the Middle District of Pennsylvania
    (No. 03-cv-01315)
    District Judge: Honorable Edwin M. Kosik
    Argued January 22, 2007
    Before: SCIRICA, Chief Judge, FUENTES and CHAGARES, Circuit Judges.
    (Filed March 29, 2007)
    *
    Because we convert St. Hill’s present appeal into a petition for review, we are
    required to substitute the Attorney General of the United States. 8 U.S.C. §
    1252(b)(3)(A).
    Alison C. Finnegan, Esq. (Argued)
    Deena Jo Schneider, Esq.
    Jessica W. Troiano, Esq.
    Schnader, Harrison Segal & Lewis LLP
    Suite 3600, 1600 Market Street
    Philadelphia, PA 19103
    Counsel for Petitioner
    Daryl F. Bloom, Esq., Assistant U.S. Attorney (Argued)
    Thomas A. Marino, Esq., U.S. Attorney
    United States Attorney’s Office
    Middle District of Pennsylvania
    228 Walnut Street, Suite 220
    Harrisburg, PA 17108
    Counsel for Respondents
    ________________________
    OPINION OF THE COURT
    _________________________
    CHAGARES, Circuit Judge.
    Before the Court is Sidney St. Hill’s (“St. Hill”) appeal of the denial of his petition
    for writ of habeas corpus challenging his final order of removal, and the Government’s
    motion to transfer venue to the United States Court of Appeals for the Second Circuit.
    For the reasons expressed below, we will grant the motion to transfer. We decline to
    address the substantive aspects of St. Hill’s appeal, leaving that for the proper judicial
    body.
    I.
    St. Hill is a native and citizen of Guyana who has lived in the United States as a
    2
    lawful permanent resident since 1982. Over the next decade, he was convicted of
    committing four separate crimes under New York law: to wit, a July 11, 1983 conviction
    for possession of a weapon; a January 29, 1984 conviction for unlawful possession of
    marijuana pursuant to New York State Penal Law § 221.05, a misdemeanor; a December
    10, 1984 conviction for criminal possession of a weapon in the third degree; and a July
    22, 1992 conviction for unlawful possession of a controlled substance in the third degree
    under New York State Penal Law § 220.16(12), a class B felony.
    On June 11, 1997, based on the 1984 conviction for possession of marijuana and
    the 1992 conviction for criminal possession of cocaine, the Immigration and
    Naturalization Service 1 (“INS”) commenced removal proceedings against St. Hill. St.
    Hill applied for cancellation of removal under Immigration and Nationality Act (“INA”) §
    240A, 8 U.S.C. § 1229b(a), and for waiver of removal under INA § 212(c), 8 U.S.C. §
    1182(c) (now repealed).
    On March 18, 1998, an Immigration Judge (IJ) in Fishkill, New York, denied St.
    Hill’s requests for relief and ordered St. Hill removed from the United States to Guyana.
    The IJ concluded that St. Hill’s 1992 conviction was for “a drug trafficking crime” that
    1
    The INS ceased to exist as an agency within the Department of Justice on March
    1, 2003, and its enforcement functions were transferred to the Bureau of Immigration and
    Customs Enforcement (“BICE”) within the Department of Homeland Security. See
    Homeland Security Act, Pub. L. No. 107-296, § 441, 116 Stat. 2135, 2192 (2002). For
    the purposes of our discussion, we will continue to use the appellation INS to refer to
    BICE.
    3
    constituted an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(B), and rendered
    him ineligible for cancellation of removal.
    The BIA affirmed by decision of July 11, 2001. The BIA reasoned that under the
    Controlled Substances Act, 21 U.S.C. § 844(a), a conviction for unlawful possession of a
    controlled substance that is committed after a prior drug conviction has become final is
    punishable by a term of imprisonment of up to two years and is thus a felony within the
    meaning of the Controlled Substances Act.
    On March 8, 2002, St. Hill filed a petition for writ of habeas corpus in United
    States District Court for the Eastern District of New York, challenging the order of
    removal. In his petition, St. Hill argued that he had not been convicted of an aggravated
    felony, and that he was entitled to cancellation of removal under 8 U.S.C. § 1229b(a), or
    alternatively, waiver of removal, under § 212(c), formerly 8 U.S.C. § 1182(c). By order
    dated November 25, 2002, the District Court vacated the BIA’s final order of removal and
    remanded St. Hill’s case to the BIA “for a determination as to whether [St. Hill] is
    removable from the United States based on his criminal connections [sic] and if so,
    whether petitioner is eligible for any relief from removal.” (A52.) After additional
    briefing on these issues, the BIA again denied St. Hill’s appeal by order dated May 6,
    2003. In doing so, the BIA reaffirmed its prior decision regarding the aggravated felony.
    In July 2002, St. Hill was released on parole to the custody of the immigration
    4
    authorities and transferred to Pike County Prison in Lords Valley, Pennsylvania.
    Approximately one year later, on August 6, 2003, St. Hill filed a second petition for writ
    of habeas corpus, this time in the Middle District of Pennsylvania. The petition
    challenged his detention pursuant to the BIA’s final orders of removal dated July 11,
    2001 and May 6, 2003.
    In his petition, St. Hill argued that Third Circuit precedents, namely Steele v.
    Blackman, 
    236 F.3d 130
    (3d Cir. 2001) and Gerbier v. Holmes, 
    280 F.3d 297
    (3d Cir.
    2002), supported his contention that his July 22, 1992 conviction for unlawful possession
    of a controlled substance in the third degree under New York State Penal Law §
    220.16(12) was not an aggravated felony. The Pennsylvania District Court disagreed.
    Applying Second Circuit precedents, the court concluded that although St. Hill’s first
    drug conviction constituted merely simple possession and was a misdemeanor under
    federal law, the second drug conviction qualified as a drug-trafficking crime and thus an
    aggravated felony. By order dated October 21, 2003, the Pennsylvania District Court
    denied St. Hill’s habeas petition, and affirmed the BIA.
    On October 23, 2003, St. Hill filed a notice of appeal of the Pennsylvania decision,
    albeit mistakenly, in the Court of Appeals for the Second Circuit. The Second Circuit
    Court of Appeals treated St. Hill’s notice of appeal as a petition for review from the
    BIA’s May 2003 decision. Noting only that St. Hill’s petition was untimely, the Court
    dismissed the appeal on August 23, 2004 for lack of jurisdiction. Following the dismissal
    5
    of his habeas petition, on September 1, 2004, St. Hill filed a new petition for writ of
    habeas corpus in the District Court for the Eastern District of New York. In this petition,
    St. Hill again argued that the BIA erred in classifying his conviction as an aggravated
    felony. The District Court denied St. Hill’s petition on March 30, 2005. St. Hill filed a
    notice of appeal on June 2, 2005. His appeal to the Court of Appeals for the Second
    Circuit has been stayed pending our decision here.
    On October 25, 2004, St. Hill participated in a telephone conference with the
    District Court for the Eastern District of New York and counsel for the Government,
    during which it became clear that St. Hill mistakenly filed his appeal from the October 21,
    2003 decision of the Middle District of Pennsylvania in the Court of Appeals for the
    Second Circuit. Thereafter, on October 28, 2004, St. Hill filed a notice of appeal in
    Pennsylvania, in which he requested an extension of time pursuant to F. R. A PP. P. 4(a).
    By order dated November 2, 2004, the Pennsylvania District Court granted St. Hill’s
    motion for an extension of time, permitting him to file his appeal nunc pro tunc.2
    II.
    Our jurisdiction over this matter is a threshold issue. Prior to May 11, 2005, an
    2
    St. Hill submitted an informal brief pro se on January 21, 2005; the Government
    responded on March 22, 2005 and St. Hill filed a timely reply on March 29, 2005. The
    case was calendared before a merits panel on May 24, 2005. However, on October 20,
    2005, this Court appointed counsel for St. Hill. Counsel for St. Hill was accorded a new
    briefing schedule.
    We take this opportunity to express our gratitude for appointed counsel’s
    exemplary representation of St. Hill in this case.
    6
    alien could challenge an order of removal in a petition for writ of habeas corpus filed in
    the district court under 28 U.S.C. § 2241. Duvall v. Attorney General, 
    436 F.3d 382
    , 386
    (3d Cir. 2006) (citing INS v. St. Cyr, 
    533 U.S. 289
    , 292 (2001)). While St. Hill’s appeal
    was pending, however, Congress enacted the REAL ID Act of 2005, Pub. L. No. 109-13,
    119 Stat. 231 (2005), which divests district courts of jurisdiction over challenges to orders
    of removal. The REAL ID Act mandates that habeas corpus petitions challenging orders
    of removal pending in district courts are to be converted to petitions for review and
    transferred to the appropriate court of appeals. REAL ID Act of 2005, Pub. L. No. 109-
    13, § 106(c), 119 Stat. 231, 311 (2005). The appropriate court of appeals is the one
    encompassing the jurisdiction where “the immigration judge completed the proceedings.”
    8 U.S.C. § 1252(b)(2); Bonhometre v. Gonzales, 
    414 F.3d 442
    , 446 n.5 (3d Cir. 2005).
    As noted above, St. Hill’s immigration proceedings took place in New York, and in a
    proceeding currently stayed before the Court of Appeals for the Second Circuit, St. Hill
    appeals parallel issues regarding his prior drug convictions and his eligibility for
    cancellation of removal.
    Congress was silent regarding whether an appeal from a district court habeas
    decision pending before a court of appeals at the time of the enactment of the REAL ID
    Act should be converted into petitions for review. 
    Bonhometre, 414 F.3d at 446
    . After
    considering this lack of congressional direction, we have determined that such appeals
    should likewise be converted into petitions for review. 
    Duvall, 436 F.3d at 386
    ;
    7
    
    Bonhometre, 414 F.3d at 446
    . Thus, St. Hill’s appeal of the District Court’s denial of his
    petition for habeas relief is properly converted into a petition for review of the BIA’s final
    order of removal.
    St. Hill asserts that we should retain jurisdiction over his now-converted petition
    for review instead of transferring it to the Court of Appeals for the Second Circuit. Like
    St. Hill, Bonhometre’s immigration proceedings were completed outside the jurisdiction
    of this Circuit. Although we acknowledged that “some habeas petitions pending before
    the district courts of this Circuit may not be properly before us as converted-petitions for
    review,” 
    Bonhometre, 414 F.3d at 446
    n.5 (citing 8 U.S.C. § 1252(b)(2) (1999)), we
    nonetheless retained jurisdiction over Bonhometre’s petition. We reasoned that after
    waiting such a long time for the resolution of his claims, “it would be a manifest injustice
    to now transfer this case to another court for duplicative proceedings.” 
    Id. Aligning himself
    with Bonhometre, St. Hill seeks similar treatment of his case.
    With the enactment of the REAL ID Act, Congress sought to further streamline
    what it perceived to be piecemeal review of orders of removal. See H.R. Rep. No. 109-
    72, at 173-75 (2005), reprinted in 2005 U.S.C.C.A.N. 240, 298-299. Not only must we
    abide by the express statutory command that petitions for review shall be transferred to
    the appropriate court of appeals but also here, interests of judicial economy mandate that
    we transfer this case. What distinguishes this case from Bonhometre is St. Hill’s stayed
    petition on appeal. In Bonhometre, there was no indication that any court within the First
    8
    Circuit – district or appellate – had taken an appeal or engaged in any review of the BIA
    decision. Therefore, rather than accrue more delay in transferring the case where the
    whole review process would necessarily have to begin from inception, we retained
    jurisdiction out of concern that further delay would cause manifest injustice. Unlike
    Bonhometre, however, St. Hill has court-appointed counsel ready to proceed in New
    York; the case has been accepted for review; and without a doubt, it will proceed
    expeditiously upon transfer. Finally, as it is clear that Second Circuit law governs the
    converted petition for review, a fact recognized by the Pennsylvania District Court,
    transfer is merited out of consideration for our sister Circuit’s greater expertise in the
    application and analysis of the laws of New York.
    III.
    Accordingly, we will grant the Government’s motion to transfer venue to the Court
    of Appeals for the Second Circuit.
    9
    

Document Info

Docket Number: 04-4191

Judges: Scirica, Fuentes, Chagares

Filed Date: 3/29/2007

Precedential Status: Non-Precedential

Modified Date: 10/19/2024