United States v. Contant , 467 F. App'x 141 ( 2012 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-2742
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UNITED STATES OF AMERICA
v.
ISAN CONTANT,
Appellant
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On Appeal from the United States District Court
For the Middle District of Pennsylvania
(D.C. No. 1-10-cr-00355-001)
District Judge: Honorable Chief Judge Yvette Kane
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Submitted Under Third Circuit L.A.R. 34.1(a),
March 08, 2012
BEFORE: McKEE, Chief Judge, and SCIRICA, AMBRO, Circuit Judges
(Opinion Filed: April 26, 2012)
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OPINION OF THE COURT
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McKEE, Chief Judge.
Isan Contant, a citizen and national of Trinidad and Tobago, was indicted by a
Grand Jury on a charge of hindering his own removal from the United States in violation
of 8 U.S.C. § 1253(a)(1)(C). A non-jury trial commenced on February 7, 2011, and on
1
February 23, 2011, the court found Contant guilty. The District Court imposed a 14-
month sentence followed by a one-year term of supervised release.
Contant now appeals, arguing that he could not be convicted of hindering removal
under 8 U.S.C. § 1253(a)(1)(C) because he had a stay of removal pending when the
Government attempted to deport him. For the reasons explained below, we will affirm
his conviction. 1
Because we write primarily for the benefit of the parties, we need not set forth the
facts or procedural history underlying this appeal. As we have just noted, Contant argues
that since a stay of removal was pending when the Government attempted to deport him,
he could not be convicted of hindering removal. The claim is clearly without merit.
As a threshold matter, we agree with the District Court’s conclusion that it lacked
the authority to review the validity of the underlying orders of the Immigration Judge and
the Board of Immigration Appeals. Section 1252(b)(7)(A) of the Immigration and
Nationality Act allows a defendant charged with a violation of section 1253(a) to
collaterally challenge the validity of the removal order “if the validity of an order of
removal has not been judicially decided.” 8 U.S.C. § 1252(b)(7). A defendant must file
a motion with the court prior to trial on the pending criminal charge in order to obtain
review. Id. Because Contant did not file a motion attacking the removal order, he cannot
now attempt to collaterally challenge the June 14, 2010 removal order. 2
1
The District Court had jurisdiction over this action pursuant to 18 U.S.C. § 3231. We
have appellate jurisdiction pursuant to 28 U.S.C. § 1291.
2
Contant argues that his pretrial memorandum detailed the issues on appeal here and
therefore suffices as a motion attacking the removal order. Under the plain language of
2
Moreover, even if the District Court had jurisdiction, Contant’s August 7, 2007
conviction in state court for controlled substance possession would render his I-360
petition not prima facie valid. Contant argues that, because his appeal of that prior
conviction was pending in the New York Court of Appeals at the time that he submitted
his I-360 petition, he had not actually been previously “convicted” of a crime. That
argument is meritless. “[A]n alien is considered convicted for immigration purposes
upon the initial satisfaction of the requirements of 8 U.S.C. § 1101(a)(48)(A).” Pinho v.
Gonzales, 432 F.3d 193, 204-05 (3d Cir. 2005). Section 1101(a) provides that:
The term “conviction” means, with respect to an alien, a formal judgment of guilt
of the alien entered by a court or, if adjudication of guilty has been withheld,
where –
(i) a judge or jury has found the alien guilty or the alien has entered a plea of
guilty or nolo contendere or has admitted sufficient facts to warrant a finding of
guilt, and
(ii) the judge has ordered some form of punishment, penalty, or restraint on the
alien’s liberty to be imposed.
Because Contant previously pleaded guilty in the state criminal case, Section
1101(a)(48(A) applies to his conviction. See, e.g., Montenegro v. Ashcroft, 355 F.3d
1035, 1037 (7th Cir. 2004). Based on the previous plea of guilty in state court, Contant
was “convicted” for purposes of determining his eligibility for an I-360 petition.
8 U.S.C. § 1229a(c)(7)(C)(iv) provides for an automatic stay of removal but only
“qualified aliens,” as defined in 8 U.S.C. § 1641(c)(1)(B), are eligible. The USCIS
determined that Contant was ineligible for relief because his conviction for criminal
the statute, a pre-trial memorandum, not styled as a motion attacking the removal order,
would not satisfy the requirement to raise the collateral attack in a motion before the
District Court prior to trial.
3
possession of a controlled substance and his criminal history precluded him from
establishing the requisite good moral character. 3 He was therefore not eligible for
adjustment of status, and no stay of removal was in place at the time of his conviction for
hindering removal. After reviewing Contant’s conviction and lengthy arrest record, we
agree that his I-360 petition was not prima facie valid because Contant can not establish
the requisite good moral character. Thus, he can not be considered a “qualified alien”
pursuant to 8 U.S.C. § 1641(c)(1)(B), and he can not avail himself of the automatic stay
in 8 U.S.C. § 1229a(c)(7)(C)(iv).
Thus, for the reasons expressed above, we will affirm the judgment of the District
Court.
3
Similarly, Contant’s I-360 petition does not entitle him to a stay because he can not
establish that he possesses the required “good moral character” pursuant to INA Section
204(a)(1).
4