Kong Xin Wang v. Attorney General USA , 216 F. App'x 147 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
2-8-2007
Wang v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1897
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"Wang v. Atty Gen USA" (2007). 2007 Decisions. Paper 1642.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 06-1897
________________
KONG XIN WANG,
Petitioner
v.
ATTORNEY GENERAL USA,
Respondent
____________________________________
On Petition for Review of an Order
of the Board of Immigration Appeals
Agency No. A71 502 111
on May 5, 2004
Immigration Judge: Walter A. Durling
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
February 7, 2007
Before: SLOVITER, MCKEE AND AMBRO, Circuit Judges.
(Filed: February 8, 2007)
_______________________
OPINION
_______________________
PER CURIAM
Kong Xin Wang, a native and citizen of China, petitions for review of a decision
of the Board of Immigration Appeals (BIA), dismissing his appeal from an Immigration
Judge’s (IJ’s) order of removal. We will deny the petition.
Wang was paroled into the United States in 1992. He then applied for asylum,
based on his alleged persecution under China’s family planning policy, but his application
remained unadjudicated, and in August 2003 he was placed in removal proceedings based
on his conviction for criminal sale of a controlled substance (heroin), in violation of New
York Penal Law § 220.29.1 The IJ found that his crime was particularly serious, and that
he was therefore statutorily ineligible for asylum or withholding of removal. A.R. 32.
The IJ recognized that he remained potentially eligible, however, for deferral of removal
under the United Nations Convention Against Torture (CAT). Wang argued that if he
were to be returned to China, he would be detained, and that he would be tortured or
possibly killed when Chinese officials learned that he had been a drug dealer. A.R. 33.
Wang also noted that the sentencing judge in his criminal case had issued a judicial
recommendation against deportation (JRAD). A.R. 33, 61, 218-19. The IJ found that
Wang would probably be detained for some period of time when he returned to China, but
that any possibility that he would be subjected to torture was purely speculative. A.R. 35.
The IJ thus denied relief pursuant to the CAT.
On appeal, the BIA agreed that Wang’s conviction constituted a particularly
serious crime, and that he was therefore potentially eligible only for deferral of removal.
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Wang had been convicted in 1999 on five criminal counts and was placed in removal
hearings, but the convictions were vacated in 2002 for a new trial, so the proceedings
were terminated. A.R. 40.
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The BIA noted that even if Wang were to be detained temporarily upon his return to
China, temporary incarceration does not constitute torture. The BIA noted that Wang’s
contention that drug dealers are executed in China was not supported by any evidence.
The BIA further found that the letter from Wang’s sentencing judge only contained
unsupported representations from Wang or his attorney. The BIA noted that there was no
evidence that China incarcerates those who return from abroad after having committed a
crime abroad, and therefore Wang could not show he was more likely than not to be
tortured upon his return. The BIA therefore dismissed the appeal.
Wang filed a petition for a writ of habeas corpus in the United States District Court
for the Eastern District of Pennsylvania. The petition was transferred on motion of the
Government to this Court, pursuant to the REAL ID Act of 2005, Pub. L. No. 109-13,
div. B, 119 Stat. 231 (2005), and is now considered to be a petition for review of his
removal order. Hernandez v. Gonzales, 437 F.3d 341, 344 (3d Cir. 2006).
Under section 242(a)(2)(C) of the Immigration and Nationality Act (INA) [8
U.S.C. § 1252(a)(2)(C)], we lack jurisdiction to review “any final order of removal
against an alien who is removable by reason of having committed,” inter alia, a controlled
substance violation covered in INA § 212(a)(2). However, the REAL ID Act of 2005
restored direct review of constitutional claims and questions of law presented in petitions
for review of final removal orders. See INA § 242(a)(2)(D) [8 U. S.C. § 1252(a)(2)(D)];
Papageorgiou v. Gonzales, 413 F.3d 356, 358 (3d Cir. 2005). Because Wang has been
convicted of a controlled substance violation, we may consider only constitutional issues,
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pure questions of law, and issues of application of law to uncontested facts. See Kamara
v. Attorney General, 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).
Thus, to the extent Wang argues that the BIA erred in its factual determination that
he would not be incarcerated upon his return, or that his incarceration would be only
temporary and would not subject him to torture, we lack jurisdiction to review those
factual findings.
Wang’s brief may also be generously construed to raise a legal claim–that the BIA
erred in failing to follow his sentencing judge’s JRAD. As the Government notes in its
brief, statutory relief by way of a JRAD was eliminated in 1990. See United States v.
Hovsepian, 359 F.3d 1144, 1157 (9th Cir. 2004) (en banc) (Congress eliminated JRADs by
way of its enactment of Pub. L. No. 101-649, § 505, 104 Stat. 4978 (1990)). Further,
even when JRADs were an available means of relief, the relief was only available to an
alien who had committed a crime involving moral turpitude. 8 U.S.C. § 1251(b) (1990).
The statute specifically precluded such relief for an alien who committed a controlled
substance violation. Id. Thus, the BIA did not err in failing to give preclusive effect to
the JRAD.
For the foregoing reasons, Wang’s petition for review will be denied.
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