Kirlew v. Attorney General ( 2008 )


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  •                                                                                                                            Opinions of the United
    2008 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    2-27-2008
    Kirlew v. Atty Gen USA
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 06-2670
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    http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1520
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    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ___________
    Nos. 06-2670, 06-3414
    ___________
    MICHAEL KIRLEW,
    Petitioner
    v.
    ATTORNEY GENERAL OF THE UNITED STATES
    Respondent
    ___________
    On Review of a Decision of the Board of Immigration Appeals
    Agency No. A30 093 662
    Immigration Judge: Grace A. Sease
    ___________
    Submitted Under Third Circuit L.A.R. 34.1(a)
    January 14, 2008
    Before: FUENTES, JORDAN, Circuit Judges, and RUFE,* District Judge.
    (Opinion Filed: February 27, 2008)
    *
    Honorable Cynthia M. Rufe, United States District Judge for the Eastern District
    of Pennsylvania, sitting by designation.
    -1-
    OPINION OF THE COURT
    FUENTES, Circuit Judge:
    Michael Kirlew (“Kirlew”) petitions for review of a Board of Immigration Appeals
    (“BIA”) decision affirming an immigration judge’s (“IJ”) final order of removal, as well
    as the BIA’s refusal to reopen proceedings. For the following reasons, we will deny the
    petitions.
    I.
    Because we write for the parties’ benefit, we will recite only those facts necessary
    to decide this matter. Kirlew is a 41 year old native and citizen of Jamaica who entered
    the United States on September 11, 1973. In 2005, the Department of Homeland Security
    (“DHS”) issued two notices alleging that Kirlew was removable for having been
    convicted of the following crimes: (1) carrying a firearm without a license in violation of
    
    18 Pa. Cons. Stat. § 6106
    (a)(2) (the “Firearms Conviction”); (2) criminal conspiracy to
    deliver a controlled substance in violation of 
    18 Pa. Cons. Stat. § 903
     (the “Conspiracy
    Conviction”); and (3) possession of marijuana (the “Marijuana Conviction”). The DHS
    alleged that these convictions rendered him removable from the United States as an alien
    convicted of two aggravated felonies, 
    8 U.S.C. § 1227
    (a)(2)(A)(iii), § 1101(a)(43)(B) &
    (U), as an alien convicted of a firearms offense, 
    8 U.S.C. § 1227
    (a)(2)(C), and as an alien
    convicted of a controlled substance offense, 
    8 U.S.C. § 1227
    (a)(2)(B)(i).
    -2-
    Kirlew appeared before an IJ and conceded these convictions. He then obtained
    new counsel and filed a series of motions. First, he filed a motion asking the IJ to release
    him on bond. The IJ denied this motion, finding sufficient evidence in the record of
    Kirlew’s criminal convictions. Kirlew then filed a motion to withdraw his earlier
    admissions, claiming the DHS had insufficient proof of his convictions. The IJ also
    denied this motion, holding that the DHS met its burden of presenting clear and
    convincing evidence of Kirlew’s removability.
    Kirlew then filed a motion asking the IJ to recuse herself from this matter. He
    claimed that the IJ’s decision denying bond, her failure to permit him to withdraw his
    earlier admissions, and her overall attitude during the proceedings evidenced her bias. In
    a written opinion, the IJ denied this request. The IJ then issued an oral decision finding
    Kirlew removable and ordering him removed to Jamaica.
    Kirlew appealed the IJ’s decisions to the BIA, which affirmed. The BIA found
    that Kirlew’s removability was based on “abundant conviction records produced by the
    DHS....” (Administrative Record (“A.R.”) 23.) The BIA also held that Kirlew did not
    demonstrate sufficient good cause to withdraw his concessions of removability.
    Furthermore, the BIA held that Kirlew’s motion for recusal was “unsupported by the
    record.” (A.R. 3.) Kirlew then petitioned this Court for review.
    While his petition was pending, Kirlew moved before the BIA to reopen his
    proceedings and reconsider its decision, which the BIA denied. Kirlew then filed a
    -3-
    second petition with us seeking review of the BIA’s denial of this motion. We
    consolidated both petitions for review.
    II.
    We have jurisdiction to review a final order of removal under 
    8 U.S.C. § 1252
    .
    The BIA’s factual findings are reviewed for substantial evidence, 
    8 U.S.C. § 1252
    (b)(4)(B), and its legal determinations are reviewed de novo, Wang v. Ashcroft, 
    368 F.3d 347
    , 349 (3d Cir. 2004). Furthermore, we will review the BIA’s denial of Kirlew’s
    motion to reopen for abuse of discretion. Borges v. Gonzales, 
    402 F.3d 398
    , 404 (3d Cir.
    2005). Under the abuse of discretion standard, the BIA’s decision will be reversed if it is
    arbitrary, irrational, or contrary to law. Fadiga v. AG of the United States, 
    488 F.3d 142
    ,
    153 (3d Cir. 2007).
    III.
    Kirlew first argues that the evidence establishing the Conspiracy Conviction
    violates the requirement of Woodby v. INS, 
    385 U.S. 276
    , 286 (1966), that removal orders
    be based on “clear, unequivocal, and convincing evidence.” We disagree. The record
    contains an Order from the Court of Common Pleas, Lancaster County, recording that
    Kirlew was convicted of criminal conspiracy (A.R. 231), which is supported by the NCIC
    printout (A.R. 220), the Criminal Information listing the charge (A.R. 232-33), his written
    guilty plea to this offense (A.R. 234-36), as well as the Complaint and Affidavit of
    probable Cause relating to this offense (A.R. 237-38). Furthermore, each of these
    -4-
    documents is admissible to prove the existence of the Conspiracy Conviction. See 
    8 C.F.R. § 1003.41
    .
    Kirlew raises a number of arguments directed towards the sufficiency of these
    documents. His arguments are mainly directed at the clarity of the records, some of
    which use abbreviations to describe the term “criminal conspiracy,” and some of which
    are unsigned by him. We reject each of these arguments as the documents submitted by
    the government, taken together, clearly and unequivocally establish that Kirlew was
    convicted of the Conspiracy Conviction. Accordingly, Kirlew is removable for this
    offense.1
    IV.
    Kirlew next contends that he is not removable for the Firearms Conviction because
    it was a “licensing offense,” and not a “possession offense” under 
    8 U.S.C. §1227
    (a)(2)(C). We disagree. Contrary to Kirlew’s assertion, the statute under which he
    was convicted does not merely criminalize the non-licensing of a weapon – it penalizes
    the carrying of a weapon without a license. See 
    18 Pa. Cons. Stat. § 6106
    (a)(2)
    (providing that any “person who is otherwise eligible to possess a valid license under this
    chapter but carries a firearm ... without a valid and lawfully issued license” is guilty of a
    1
    Kirlew also raises a sufficiency of evidence argument regarding the Marijuana
    Conviction, which he claims was later vacated on May 11, 2006. Since Kirlew raised this
    argument in his motion to reopen, we will address it below in our discussion of the
    motion to reopen. See infra Part VI.
    -5-
    misdemeanor (emphasis added)). Because the Firearms Conviction penalized Kirlew for
    carrying a firearm, he is removable for that conviction as charged by the government. See
    
    8 U.S.C. §1227
    (a)(2)(C) (providing that an alien is removable for being convicted of
    “carrying” or conspiring to “carry” any weapon in violation of the law).
    V.
    Kirlew next argues that the BIA erred in affirming the IJ’s refusal to recuse herself
    because of judicial bias. After reviewing the record, we conclude that the IJ’s conduct
    did not require recusal. Kirlew’s argument that the IJ’s attitude towards his counsel
    evidenced her bias is unavailing. While the IJ was perhaps impatient with Kirlew’s
    counsel at times, it is also notable that she adjourned the matter on two occasions so
    Kirlew could pursue various avenues of relief. (A.R. 86, 99-100.) Any hostility
    expressed by her behavior can be characterized as those “expressions of impatience,
    dissatisfaction, annoyance, and even anger” that are expressed by judges on occasion and
    which do not rise to the level of a due process violation. See Liteky v. United States, 
    510 U.S. 540
    , 555-56 (1994). Moreover, we cannot base a finding of bias merely on repeated
    adverse rulings, 
    id. at 555
    , nor can counsel’s personal experiences with the IJ in other
    matters, which are not contained in the administrative record, constitute evidence we can
    consider in a petition for review. Accordingly, the BIA’s ruling on this issue will not be
    -6-
    disturbed.2
    VI.
    Finally, Kirlew challenges the BIA’s denial of his motion to reopen and
    reconsider. Kirlew sought to reopen his proceedings because his Marijuana Conviction
    was subsequently vacated and, therefore, he argued that he was entitled to relief under
    former Section 212(c) of the Immigration and Nationality Act, 
    8 U.S.C. § 1182
    (c)
    (repealed 1996), for the Firearms Conviction and Conspiracy Conviction. In addition,
    Kirlew argued that the matter should be reopened because his first attorney rendered
    ineffective assistance of counsel. Kirlew also sought reconsideration of the BIA’s
    previous decision because he claimed that it “failed to articulate any legal standard,
    statutory, case law or regulation in support of its legal conclusion” (A.R. 7) (emphasis in
    original) and improperly discounted his claims of bias regarding the IJ.
    Because the BIA properly affirmed the IJ’s denial of recusal, we will affirm the
    BIA’s decision not to reopen the matter on that ground. Furthermore, while the record
    validates Kirlew’s claim that his Marijuana Conviction was subsequently vacated, he
    would still be unable to obtain Section 212(c) relief because of the Firearms Conviction.
    2
    Kirlew also argues that counsel for the DHS during the proceedings did not make
    a good faith argument justifying his contention that the IJ was not biased. Since we hold
    that the IJ’s conduct did not justify a finding of bias, we also reject Kirlew’s contentions
    regarding the conduct of the DHS’s counsel.
    -7-
    See Caroleo v. Gonzales, 
    476 F.3d 158
    , 165 (3d Cir. 2007) (holding that Section 212(c)
    relief is unavailable to a lawful permanent resident convicted of a firearms offense
    qualifying under 
    8 U.S.C. § 1227
    (a)(2)(C)) (citing Komarenko v. INS, 
    35 F.3d 432
     (9th
    Cir. 1994)).
    Furthermore, as the BIA correctly found, Kirlew’s ineffective assistance of counsel
    claim must fail because he did not provide the BIA with an affidavit detailing this claim,
    nor did he notify the relevant disciplinary authorities of his charges. In Matter of Lozada,
    
    19 I. & N. Dec. 637
    , 639 (BIA 1988), the BIA held that an alien raising an ineffective
    assistance of counsel claim in a motion to reopen must present the foregoing information.
    We have previously upheld the BIA’s use of the Lozada test in adjudicating motions to
    reopen for ineffective assistance of counsel. See, e.g., Mudric v. AG of the United States,
    
    469 F.3d 94
    , 100 (3d Cir. 2006). Because Kirlew did not satisfy the requirements of
    Lozada, the BIA did not abuse its discretion in denying the motion to reopen on this
    ground.3
    VII.
    For the foregoing reasons, we will deny the petitions for review.
    3
    Kirlew claims that he submitted an amended motion to reopen which met the
    strictures of Lozada. This amended motion, though, is not reflected in the certified
    administrative record, nor does the record indicate that Kirlew ever sought to supplement
    his pleadings before the BIA. Furthermore, it is worth noting that, as to Kirlew’s
    ineffective assistance of counsel claim, Kirlew could not show prejudice. As chronicled
    above, the DHS’s evidence was more than sufficient to prove his removability, and he
    was not eligible for Section 212(c) relief because of the existence of the Firearms
    Conviction from 1995.
    -8-