Scott v. Attorney General of the United States , 171 F. App'x 404 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
3-22-2006
Scott v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-2691
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"Scott v. Atty Gen USA" (2006). 2006 Decisions. Paper 1399.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-2691
________________
GREGORY SCOTT,
Petitioner
v.
*ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
(*Amended pursuant to Clerk’s Order of 6/16/05)
____________________________________
On Review of a Decision of the
Board of Immigration Appeals
(Agency No. A77 322 711)
Immigration Judge: Walter A. Durling
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
March 21, 2006
Before: SLOVITER, SMITH AND VAN ANTWERPEN, CIRCUIT JUDGES
(Filed: March 22, 2006)
_______________________
OPINION
_______________________
PER CURIAM
Gregory Scott, a native and citizen of Belize, petitions for review of a final order of
the Board of Immigration Appeals (“BIA”). The respondent, the Attorney General, has
moved to dismiss, contending that the petition for review was not timely filed. We agree.
Thus, we will grant the motion to dismiss, and will dismiss the petition for review.
Scott first entered the United States in 1997. Thereafter, he was arrested in Chicago,
Illinois, on drug charges. Scott was released on bail and traveled to Belize. In September
2000, Scott attempted to re-enter the United States. He was detained and then paroled into
the country to face the pending Illinois charges. In February 2001, Scott was convicted of
possession of a controlled substance (cocaine) with intent to deliver in violation of section
401(d) of the Illinois Controlled Substances Act (720 ILCS 570/401(d)).
In August 2004, Scott was charged as being removable as an alien whom a consular
officer or the Attorney General had reason to believe to be an illicit trafficker in a controlled
substance, see Immigration and Nationality Act (“INA”) § 212(a)(2)(C)(i) [8 U.S.C.
§ 1182(a)(2)(C)(i)], and as an alien convicted of violating a controlled substance law, see
INA § 212(a)(2)(A)(i)(II) [8 U.S.C. § 1182(a)(2)(A)(i)(II)]. An Immigration Judge (“IJ”)
found that Scott was removable as charged and that he was ineligible for a waiver of
inadmissibility under INA § 212(h) [8 U.S.C. § 1182(h)]. The Board of Immigration
Appeals (“BIA”) affirmed on April 15, 2005.
On May 24, 2005, Scott filed a habeas corpus petition pursuant to 28 U.S.C. § 2241
in the United States District Court for the Middle District of Pennsylvania. Without taking
any action on the § 2241 petition, the District Court transferred the petition to this Court for
treatment as a petition for review pursuant the REAL ID Act of 2005. Pub. L. No. 109-13,
2
Div. B, 119 Stat. 231 (May 11, 2005). The respondent filed a motion to dismiss, arguing
that the petition for review was untimely filed.
The REAL ID Act, which became law on May 11, 2005, amended INA § 242 so that
petitions for review filed with the courts of appeals are the “sole and exclusive means for
judicial review of” most orders of removal, including the order of removal at issue in this
case. See INA § 242(a)(5) [8 U.S.C. § 1252(a)(5)]; see also Bonhometre v. Gonzales, 414
F.3d 442, 445 (3d Cir. 2005). “In so doing, the Act expressly eliminated district courts’
habeas jurisdiction over removal orders.” Jordon v. Attorney General, 424 F.3d 320, 326
(3d Cir. 2005) (citing Bonhometre, 414 F.3d at 445). Thus, when Scott filed his § 2241
petition on May 24, 2005, the District Court was without jurisdiction to entertain it. Indeed,
after May 11, 2005, the only means for review of Scott’s removal order was a petition for
review.
A petition for review must be filed within 30 days of a final order of removal. See
INA § 242(b)(1) [8 U.S.C. § 1252(b)(1)]; Malvoisin v. INS, 268 F.3d 74, 75 (2d Cir. 2001).
The courts of appeals “may not extend the time to file” a petition for review of an order of
an administrative board, such as the BIA. Fed. R. App. P. 26(b)(2); Malvoisin, 268 F.3d at
76. Because the BIA’s decision was filed on April 15, 2005, Scott had until Monday, May
16, 2005 to file a timely petition for review.1 Scott’s § 2241 petition, dated May 20, 2005,
was not timely.
1
The thirtieth day was Sunday, May 15, so a timely petition could have been filed the
next day. See Fed. R. App. P. 26(a); Shendock v. Dir., OWCP, 893 F.2d 1458, 1461 n.6
(3d Cir. 1990) (en banc).
3
Under these circumstances, we will grant the government’s motion to dismiss, and
will dismiss the petition for review. Scott’s motion for leave to expand the record is granted.