Davis v. Attorney General of the United States ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
9-25-2008
Davis v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-1644
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"Davis v. Atty Gen USA" (2008). 2008 Decisions. Paper 486.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-1644
___________
FRANK EMANUEL DAVIS,
Petitioner,
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On a Petition For Review of an Order
of the Board of Immigration Appeals
Agency No. A71-533-582
Immigration Judge: Andrew R. Arthur
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 24, 2008
Before: AMBRO, FUENTES and FISHER, Circuit Judges
(Filed: September 25, 2008 )
___________
OPINION
___________
PER CURIAM
Petitioner Frank Emanuel Lewis, a native and citizen of Jamaica, was admitted to
the United States at Miami, Florida in October 1990 as a non-immigrant visitor for
pleasure. His status was adjusted to that of a conditional resident of the United States in
December 1991, and then to that of a lawful permanent resident in April 1994 when the
conditions of his residency were removed. According to the criminal Judgment at issue in
this petition for review, on February 19, 2003, Davis was convicted following a jury trial
in United States District Court for the Middle District of Florida of conspiracy to possess
with intent to distribute 1000 kilograms or more of marijuana in violation of 21 U.S.C.
§ 846 and § 841(b)(1)(A)(vii), and possession with intent to distribute 1000 kilograms or
more of marijuana in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(A)(vii).1 He was
sentenced to a term of imprisonment of 97 months, with a projected release date of
October 17, 2008.
Davis was served with a Notice to Appear on December 7, 2005, alleging that he
was removable under Immigration and Nationality Act (“INA”) § 237(a)(2)(A)(iii), 8
U.S.C. § 1227(a)(2)(A)(iii), as an alien who had been convicted of an aggravated felony
as defined by INA § 101(a)(43)(B) (“illicit trafficking in a controlled substance (as
defined in section 802 of Title 21), including a drug trafficking crime (as defined in
section 924(c) of Title 18"), as well as another provision of the statute. Davis conceded
that he was removable as charged, and the Immigration Judge ordered him removed to
Jamaica on October 10, 2007.
Davis attempted to appeal to the Board of Immigration Appeals. On February 5,
2008, the Board dismissed his appeal as untimely under 8 C.F.R. § 1003.38(b), (c) (notice
of appeal must be filed within 30 calendar days). Davis’ notice of appeal was due on
1
The record does not support Davis’ assertion that he pleaded guilty.
2
Friday, November 9, 2007. It was not submitted until December 18, 2007. It was initially
rejected due to filing defects, 8 C.F.R. § 1003.38(d), and then it was properly filed on
January 9, 2008. The Board returned the record to the Immigration Court without further
action, and noted that a motion to reopen raising new issues, which has strict number and
time limits, ordinarily would be filed in Immigration Court. Davis filed a timely petition
for review in this Court, and sought a stay of removal, which we denied.2
To the extent that we have jurisdiction, it is governed by 8 U.S.C. § 1252(a)(1),
(a)(2)(D); but see 8 U.S.C. § 1252(a)(2)(C). See also Kamara v. U.S. Attorney General,
420 F.3d 202, 210 (3d Cir. 2005). Davis first contends that he is a national of the United
States because he pledged his allegiance to this country and applied for naturalization in
November 2000 prior to his conviction. His arrest came shortly before his naturalization
interview date. We have previously rejected this same argument, however, in Salim v.
Ashcroft, 350 F.3d 307, 310 (3d Cir. 2003), where we held that "simply filing an
application for naturalization does not prove that one owes a permanent allegiance to the
United States,” and, for one who is a citizen of another country, "nothing less than
citizenship will show permanent allegiance" Id. (internal quotation marks removed).
Applying this holding to the facts in Davis' case, it is clear that he is not presently a
2
We explained that Davis had not made a showing of likely success on the merits
with respect to his argument that he is a national of the United States, and it appeared that
he had failed to exhaust his administrative remedies, 8 U.S.C. § 1252(d)(1), with respect
to his claim that he was entitled to a hardship waiver under INA § 212(h).
3
national. In addition, given his conviction, he is permanently ineligible for citizenship.
See id. (citing 8 U.S.C. § 1427(a)(3), which requires applicants for naturalization to be of
good moral character, and 8 U.S.C. § 1101(f)(7), (8), which provides that a person who
has served 180 days or more of imprisonment or has been convicted of an aggravated
felony cannot be found to be of good moral character).
Davis next contends that he is eligible for a hardship waiver under INA § 212(h)
because he has teenage children in this country. They are wards of the State of Florida
because he and his wife are both incarcerated. However, Davis has failed to exhaust his
administrative remedies with respect to his hardship claim and exhaustion is required by 8
U.S.C. § 1252(d)(1). See Zheng v. Gonzales, 422 F.3d 98, 107-08 (3d Cir. 2005).
Review is precluded where there is no timely appeal to the Board, and neither the Board
nor the IJ has addressed the hardship issue. See Alleyne v. Immigration & Naturalization
Serv., 879 F.2d 1177, 1182 (3d Cir. 1989).3 To the extent that Davis faults counsel for
the failure to properly exhaust this or any other claim, he must first pursue a motion to
reopen the removal proceedings and satisfy the Lozada requirements. See Zheng, 422
F.3d at 107-08 (discussing the requirements set out in Matter of Lozada, 19 I. & N. Dec.
637, 639 (BIA 1988)).
We will deny the petition for review.
3
Although the Board rejected Davis’ appeal due to filing defects, it was already
untimely on December 18, 2007 when it first was submitted.
4