Robert Skeffery v. Attorney General United States ( 2015 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 15-1113
___________
ROBERT F. SKEFFERY,
AKA Howard Woodhouse,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A037-755-660)
Immigration Judge: Honorable Andrew Arthur
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 1, 2015
Before: AMBRO, VANASKIE and SLOVITER, Circuit Judges
(Opinion filed: July 2, 2015)
___________
OPINION*
___________
PER CURIAM
Robert F. Skeffery, a native and citizen of Jamaica, petitions for review of the
Board of Immigration Appeals’ (BIA or Board) order denying his motion to reopen
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
deportation proceedings. For the following reasons, we will dismiss in part and deny in
part the petition for review.
Skeffery was placed in deportation proceedings in 1994, based on convictions for
controlled substance violations. He was deported in July 1996, but reentered the United
States. In 2003, he was convicted in Pennsylvania of committing additional crimes,
including possession of marijuana and firearms offenses. Skeffery successfully moved to
reopen his proceedings, and the Government lodged an additional charge of deportability
under former Immigration and Nationality Act (INA) § 241(a)(2)(C) [8 U.S.C. §
1227(a)(2)(C)] (providing that (“[a]ny alien who at any time after admission is convicted
under any law of . . . possessing . . . a firearm . . . in violation of any law is deportable.”).
In June 2007, Skeffery appeared pro se before an Immigration Judge (IJ), who found him
deportable as charged and ineligible for relief. Skeffery waived appeal. 1
In October 2013, Skeffery filed a motion to reopen the proceedings, arguing that
his waiver of his right to appeal was not knowing and that he was not informed of his
1
In July 2007, Skeffery was again deported to Jamaica. He returned to the United States
in December 2009, and applied for entry using altered Canadian identification
documents. In 2013, he was convicted in the United States District Court for the
Southern District of California of attempted entry after deportation. See INA § 276 [8
U.S.C. § 1326]. The Government also placed Skeffery in removal proceedings on the
grounds that he attempted to gain entry into the United States by fraudulently or willfully
misrepresenting a material fact, INA § 212(a)(6)(C)(i) [8 U.S.C. § 1182(a)(6)(C)(i)], and
that he did not have a valid, unexpired immigrant visa, § 212(a)(7)(A)(i)(I) [8 U.S.C.
§ 1182(a)(7)(A)(i)(I)]. According to the Government, “[t]hose removal proceedings are
separate and apart from the deportation proceedings at issue in the instant case and Mr.
Skeffery’s removal proceedings are ongoing.” Res’p’s Br., 7 n.4.
2
eligibility for relief under former INA § 212(c) [8 U.S.C. § 1182(c)]. The IJ denied the
motion, but the BIA remanded for further consideration in light of its decision in In re
Abdelghany, 26 I. & N. Dec. 254, 260 n.11 (BIA 2014) (clarifying that “repeal of section
212(c) is inapplicable to any alien in deportation proceedings, even if those proceedings
commenced after April 24, 1996, and even where a conviction providing a basis (or an
additional basis) for deportability was entered on or after April 1, 1997.”). On remand,
the IJ found that Skeffery’s motion to reopen was untimely and concluded that it was not
appropriate to reopen the proceedings in the exercise of discretion. The IJ further
explained that “[w]hile [Skeffery] may be statutorily eligible to apply for 212(c) relief
. . ., he has not established that he warrants a favorable exercise of discretion.” 2 The BIA
upheld the IJ’s decision, concluded that there was no basis for sua sponte reopening, and
dismissed Skeffery’s appeal. Skeffery filed a petition for review.
Under INA § 242(a)(1) [8 U.S.C. § 1252(a)(1)], we have jurisdiction to review
final orders of removal, including the denial of a motion to reopen any such final order. 3
2
The IJ “assign[ed] weight” to Skeffery’s family ties in the United States, his residence
in this country “for at least fifteen years,” and letters of support from family and friends.
The IJ concluded, however, that those factors were outweighed by Skeffery’s “extensive
criminal history” (which included eight controlled substance convictions and a firearms
conviction) and “multiple unlawful reentries [which] demonstrate a flagrant disregard for
the immigration laws of the United States.”
3
Skeffery argues that because he was placed in deportation proceedings in 1994, and the
challenged final deportation order was entered in 2007, the transitional rules of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) apply. See
Bakhtriger v. Elwood, 360 F.3d 414, 417 n.2 (3d Cir. 2004) (stating that “[a]ll removal
cases commenced before April 1, 1997, in which a final order of deportation was filed
3
See Cruz v. Att’y Gen., 452 F.3d 240, 246 (3d Cir. 2006); Oliva-Ramos v. Att’y Gen.,
694 F.3d 259, 270 (3d Cir. 2012) (stating that the decision to deny a motion to reopen is
reviewed for abuse of discretion). But the jurisdiction-stripping provisions of INA
§ 242(a)(2) [8 U.S.C. § 1252(a)(2)] may limit or eliminate our jurisdiction to review such
denials. For instance, “no court shall have jurisdiction to review . . . any other decision or
action of the Attorney General . . . the authority for which is specified under [relevant
provisions of the INA] to be in the discretion of the Attorney General.” INA
§ 242(a)(2)(B)(ii) [8 U.S.C. § 1252(a)(2)(B)(ii)]. In addition, when an alien is removable
for having committed an offense enumerated in INA § 242(a)(2)(C), we lack jurisdiction
to review a denial of a motion to reopen. 4 But the REAL ID Act of 2005 restored direct
review of constitutional claims and questions of law presented in petitions for review of
final removal orders. See Cruz, 452 F.3d at 246-47; INA § 242(a)(2)(D) [8 U.S.C.
§ 1252(a)(2)(D)].
after October 30, 1996 are subject to the transitional rules.”). But the Government
correctly notes that, pursuant to the REAL ID Act of 2005, a challenge to an order of
deportation in a “transitional rules” case is to be treated as if it had been filed under the
Immigration and Nationality Act § 242 [8 U.S.C. § 1252]. See Gov’t’s Br., 2 n.2; see
also Joseph v. Att’y Gen., 421 F.3d 224, 229 (3d Cir. 2005).
4
One of the offenses enumerated in § 242(a)(2)(C) [8 U.S.C § 1252(a)(2)(C)] is INA
§ 237(a)(2)(C) [8 U.S.C. § 1227(a)(2)(C)], which is a recodification of § 241(a)(2)(C),
the basis for Skeffery’s deportability. Cf. McAllister v. Att’y Gen., 444 F.3d 178, 184
(3d Cir. 2006) (holding that the jurisdictional bar of § 242(a)(2)(C) applies when the
“actual basis for the final order of removal was the alien’s commission of one of the
enumerated offenses.”).
4
Initially, we note that Skeffery’s petition for review is timely only as to the BIA’s
denial of his motion to reopen. See INA § 242(b)(1) [8 U.S.C. § 1252(b)(1)] (providing
that a “petition for review must be filed not later than 30 days after the date of the final
order of removal”). Therefore, we cannot review his claim that the IJ violated his due
process rights by failing to notify him of eligibility for § 212(c) relief, under 8 C.F.R.
§ 1240.11(a)(2), during his June 2007 deportation hearing. Furthermore, to the extent
that Skeffery challenges the Board’s conclusion that he does not warrant the favorable
exercise of discretion for relief under § 212(c), we lack jurisdiction. See INA
§ 242(a)(2)(B)(ii); INS v. St. Cyr, 533 U.S. 289, 325 (2001) (stating that the decision to
grant or deny relief pursuant to former section 212(c) is a discretionary one).
Skeffery also asserts that reopening was warranted because Abdelghany rendered
him eligible for § 212(c) relief. Although we retain jurisdiction to consider questions of
law related to statutory eligibility for § 212(c) relief, see Lupera-Espinoza v. Att’y Gen.,
716 F.3d 781, 785 (3d Cir. 2013), the IJ and the BIA did not assess Skeffery’s eligibility.
Instead, the IJ held that “while [Skeffery] may be statutorily eligible to apply for § 212(c)
relief . . . he has not established that he warrants a favorable exercise of discretion.” See
INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts and agencies are
not required to make findings on issues the decision of which is unnecessary to the results
they reach.”). Moreover, there is no merit to Skeffery’s argument that the IJ and the BIA
improperly considered as an adverse factor his convictions that occurred after he was first
ordered deported in 1995. Cf. Parcham v. INS, 769 F.2d 1001, 1005 n.2 (4th Cir. 1985)
5
(stating that “the Attorney General is entitled to consider the facts as they exist at the time
he acts.”); Matter of Marin, 16 I. & N. Dec. 581, 584 (BIA 1978) (noting that adverse
factors in § 212(c) determination include recency of criminal record). Finally, contrary to
Skeffery’s suggestion, we generally lack jurisdiction to review the BIA’s refusal to
reopen sua sponte because the Board’s authority is committed to its unfettered discretion
and there is no meaningful standard against which the exercise of that discretion can be
judged. See Cruz, 452 F.3d at 249-50. Skeffrey does not meaningfully allege that the
Board relied on an incorrect legal premise in declining to exercise its sua sponte authority
to reopen. See Pllumi v. Att’y Gen., 642 F.3d 155, 160 (3d Cir. 2011).
For the foregoing reasons, we will dismiss the petition for review in part and deny
it in part.
6