Muirhead v. Atty Gen USA , 262 F. App'x 473 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
1-29-2008
Muirhead v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-5574
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Recommended Citation
"Muirhead v. Atty Gen USA" (2008). 2008 Decisions. Paper 1693.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 05-5574
___________
JOAN MUIRHEAD,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
___________
Petition for Review of an Order of the
Board of Immigration Appeals
(No. A79-699-016)
___________
ARGUED June 14, 2007
Before: McKEE, STAPLETON, and NYGAARD, Circuit Judges.
(Filed January 29, 2008)
Orest Bezpalko, II, Esq. (Argued)
Bezpalko & Associates
452 East Girard Avenue, Suite 101
Philadelphia, PA 19125
Counsel for Petitioner
Thomas H. Dupree, Jr., Esq. (Argued)
United States Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
Ethan B. Kanter, Esq.
Douglas E. Ginsburg, Esq.
Christopher T. Dong, Esq.
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878, Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
___________
OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
Because our opinion is wholly without precedential value, and because the parties
and the District Court are familiar with its operative facts, we offer only an abbreviated
recitation to explain why we will deny the petition for review.
Joan Muirhead, a native and citizen of Jamaica, twice pleaded guilty to distributing
cocaine in violation of New Jersey law. Several years later, she was personally served
with a Form I-851 notice that she was subject to removal as an aggravated felon. She
signed the form, admitted that she was removable, waived her rights to contest the
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charges or to seek relief from removal, and indicated that she wished to be removed to
Jamaica. She was detained 1 and later removed.
Muirhead argues that the Government’s delay in processing her removal and its
expedited administrative removal procedures denied her an opportunity to be heard and to
present a defense to her removal. An alien claiming a due process violation must
demonstrate that (1) she was entitled to greater procedural protections; and (2) that denial
of those protections resulted in substantial prejudice.
Even assuming Muirhead was entitled to additional procedural protections, she has
failed to demonstrate their absence caused her any prejudice. The record clearly shows
she was removable as an aggravated felon. See 8 U.S.C.A. §1228(b) (2005). In addition,
she was never eligible for §212(c) relief, because it was only available to lawful
permanent residents. She contends that she could have been eligible for suspension of
removal pursuant to former INA §244, if the Government had acted sooner. However, she
was not eligible for §244 relief before Congress repealed it in 1996, and, as an aggravated
felon, she has never been eligible for cancellation of removal under the current §240A(b).
Moreover, as we have held, an alien does not have a constitutional right to have her
1.
Two weeks after being detained, Muirhead obtained representation and sought
review of the evidence against her. She then filed a petition for a writ of habeas corpus in
the District Court for the Eastern District of Pennsylvania. The court granted a stay of
deportation, and transferred the matter to this Court pursuant to the REAL ID Act. We
lifted the stay of removal and remanded her detention challenge to the District Court for
the Middle District of Pennsylvania, where she was confined. That court dismissed her
detention challenge as moot when she was removed.
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removal proceedings commence at any certain time. DiPeppe v. Quarantillo, 337 F.3d
326, 335 n.17 (3d Cir. 2003).
Finally, we also reject Muirhead’s request for relief under the common law writ of
audita querela. Several courts of appeals have concluded that the All Writs Act, 28
U.S.C. §1651, grants courts authority to order audita querela relief in exceptional
circumstances. However, the writ is available only where the petitioner raises a (1) valid
legal objection; (2) to a judgment that arises after that judgment is entered; and (3) that is
not redressable by some other means. As explained above, Muirhead has failed to raise a
valid legal objection to her removal, and she is therefore not entitled to the writ.
For the foregoing reasons, we will deny the petition for review.
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