Gordon v. Atty Gen USA , 117 F. App'x 842 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
12-23-2004
Gordon v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-1486
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-1486
DWIGHT GORDON,
Petitioner
v.
JOHN ASHCROFT, Attorney General of the
United States; U.S. CITIZENSHIP AND
IMMIGRATION SERVICES
DISTRICT DIRECTOR,
Respondents
On Petition for Review of a Final Order
of the Board of Immigration Appeals
(No. A37-331-225)
Submitted Under Third Circuit LAR 34.1(a)
December 14, 2004
Before: AMBRO, VAN ANTWERPEN and STAPLETON, Circuit Judges
(Opinion filed December 23, 2004)
OPINION
AM BRO, Circuit Judge
Dwight Gordon seeks review of a final order of the Board of Immigration Appeals
(“BIA”) affirming an order of removal issued by an Immigration Judge (“IJ”). For the
reasons that follow, we dismiss the petition for review for lack of jurisdiction.
Gordon is a native and citizen of Jamaica who was admitted to the United States
on July 4, 1981. On May 19, 1998, Gordon was convicted in the United States District
Court for the Southern District of Florida of conspiracy to possess with intent to deliver
cocaine, in violation of 21 U.S.C. § 846. On February 5, 2002, the Immigration and
Naturalization Service (“INS”)1 placed Gordon into removal proceedings with a Notice to
Appear (“NTA”) charging him with removal under Immigration and Nationality Act
(“INA”) §§ 237(a)(2)(A)(iii) and (B)(i), 8 U.S.C. §§ 1227(a)(2)(A)(iii) and (B)(i), as an
alien convicted of an aggravated felony (illicit trafficking in a controlled substance) and
a controlled substance offense.
Gordon admitted to the IJ the factual allegations in the NTA and conceded that he
was removable as an aggravated felon. He asked the IJ for a continuance in order to
pursue post-conviction relief. The IJ granted Gordon a three-month continuance. On
August 15, 2002, Gordon’s immigration proceedings reconvened. Gordon requested
another continuance so that he could continue discussions with the United States Attorney
in Florida regarding the feasibility of amending the judgment of conviction and allowing
1
On March 1, 2003, the INS ceased to exist as an agency within the Department of
Justice and the INS's functions were transferred to the Department of Homeland Security.
See Homeland Security Act of 2002, Pub. L. No. 107-296 §§ 441, 451 & 471, 116 Stat.
2135.
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him, he contends, to be eligible for cancellation of removal. The IJ denied the motion for
another continuance. Based on Gordon’s admissions and concessions, the IJ found him
removable as charged and ordered him removed to Jamaica. Gordon appealed the IJ’s
decision to the BIA, which affirmed the decision without opinion pursuant to 8 C.F.R. §
1003.1(e)(4). This petition for review followed.
Where, as here, the BIA summarily affirms the IJ’s decision, we review the IJ’s
decision. Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003) (en banc) (“[W]hen the BIA
issues an AWO under the streamlining regulations we review the IJ’s opinion and
scrutinize its reasoning.”). The Government argues, however, that we lack jurisdiction
pursuant to INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C). That provision divests courts
of jurisdiction to review the removal orders of aliens who are removable on the basis of
having committed certain crimes, including drug-trafficking crimes.
However, the Supreme Court has left open the possibility that, notwithstanding the
lack of jurisdiction to review removals for aggravated felons such as drug-traffickers, we
nonetheless may have jurisdiction to consider substantial constitutional questions.
Calcano-Martinez v. INS, 533 U.S. 348, 350 n.2 (2001); see also Demore v. Kim, 538
U.S. 510, 517 (2003) (“‘where Congress intends to preclude judicial review of
constitutional claims[,] its intent to do so must be clear’”) (quoting Webster v. Doe, 486
U.S. 592, 603 (1988)); Robledo-Gonzales v. Ashcroft, 342 F.3d 667, 680 (7th Cir. 2003)
(“this court has continued to assert its jurisdiction to review [in a petition to review]
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substantial constitutional questions [where INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C),
applies]”); Garcia v. Attorney General, 329 F.3d 1217, 1222 (11th Cir. 2003) (noting that
“in construing the bar in the IIRIRA permanent rules, this Court has determined that, if
the bar applies, it nonetheless retains jurisdiction to consider constitutional challenges to
the INA or any other ‘substantial constitutional issues’ arising out of the alien’s removal
proceedings”). We need not decide the issue,2 as Gordon’s claims are not, under current
case law, substantial.
Gordon raises two constitutional claims. The first is that the IJ’s denial of
Gordon’s request for a continuance deprived him of due process under the Fifth
Amendment of the United States Constitution; the second is that the BIA’s affirmance
without opinion of the IJ also deprived him of due process.
Regarding Gordon’s first claim, the decision to grant or deny a motion for a
continuance is in the discretion of the IJ. See Rios-Berrios v. INS, 776 F.2d 859, 862 (9th
Cir. 1985). A decision to deny a continuance will not be overturned except on a showing
of clear abuse. Id. Moreover, an alien must show that he or she has suffered prejudice
resulting from the abuse of discretion. In re Exilus, 18 I. & N. Dec. 276, 278 (BIA 1982)
(citing Nicholas v. INS, 590 F.2d 802, 809 (9th Cir. 1979)).
The IJ did not abuse his discretion in denying Gordon’s second continuance
2
Before Calcano and Kim, however, we held that there is no review of
constitutional issues in cases that fall within the jurisdictional bar of INA § 242(a)(2)(C),
8 U.S.C. § 1252(a)(2)(C). See Liang v. INS, 206 F.3d 308, 323 (3d Cir. 2000).
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request, and in any event Gordon has not shown that he has suffered prejudice. The IJ
granted Gordon’s first request for a continuance and gave him three months so that he
could pursue post-conviction relief. At the conclusion of the three months, Gordon
appeared before the IJ and stated that he had not been able to secure any relief from his
drug conviction. The IJ noted that, despite being given an additional three months to seek
post-conviction relief, Gordon had not shown “any progress in that direction.” The IJ
also observed that Gordon’s conviction was “not currently on appeal” and noted that
Gordon pled guilty to a drug-trafficking crime upon which his removal was based. In
addition, he produced no evidence to suggest that, with more time, he would have been
able to secure relief from the conviction. Indeed, Gordon has not argued that he has a
legal right to amend the judgment of conviction or to any other post-conviction relief.
In this context, Gordon has not raised a substantial question as to whether his due
process rights were violated. Cf. Ponce-Leiva v. Ashcroft, 331 F.3d 369, 377 (3d Cir.
2003) (IJ’s denying of counsel’s continuance request and then proceeding with asylum
hearing without counsel did not violate any of Ponce-Leiva’s constitutional rights, as no
reason was given for counsel’s trip, IJ determined counsel’s absence would make no
difference at hearing, it was clear that asylum claim would not merit relief, and Ponce-
Leiva admitted removability and made no attempt to show that the questions asked by the
IJ did not give him the opportunity to present his case fully).
Gordon’s second claim is that the BIA’s affirmance without opinion of the IJ’s
5
decision deprived him of due process. In Dia v. Ashcroft, 353 F.3d 228 (3d Cir. 2003) (en
banc), we stated that “[w]e agree with our sister courts of appeals . . . that the
streamlining regulations [which allow for affirming without opinion] do not violate the
Due Process Clause of the Constitution.” Id. at 238. Gordon notes that 8 C.F.R. §
1003.1(e)(4)(i) states that “[t]he Board member . . . shall affirm the decision of . . . the
immigration judge . . . without opinion if the Board member determines that . . . any
errors in the decision under review were harmless or nonmaterial . . . .” Id. Gordon
argues that the BIA’s affirmance without opinion was inappropriate in his case because
the IJ’s decision not to grant a second continuance was an error that was not harmless.
This merely circles back to the IJ’s denial of Gordon’s second continuance request. As
we already decided the IJ’s denial was not an error, Gordon’s argument fails.
Because Gordon is an alien who is removable because he committed an aggravated
felony and controlled substance offense under INA §§ 237(a)(2)(A)(iii) and (B)(i), 8
U.S.C. §§ 1227(a)(2)(A)(iii) and (B)(i), and because he has not raised any substantial
constitutional challenge over which we might have jurisdiction, INA § 242(a)(2)(C), 8
U.S.C. § 1252(a)(2)(C), bars us from exercising jurisdiction over his petition for review.
We thus dismiss.
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