Rangolan v. Mukasey ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1434
PAUL ANTHONY RANGOLAN,
Petitioner,
v.
MICHAEL B. MUKASEY, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: October 28, 2008 Decided: December 3, 2008
Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
ARGUED: Linda Anna Dominguez, L.A. DOMINGUEZ LAW, L.L.C.,
Baltimore, Maryland, for Petitioner. M. Jocelyn Lopez Wright,
UNITED STATES DEPARTMENT OF JUSTICE, Office of Immigration
Litigation, Washington, D.C., for Respondent. ON BRIEF:
Gregory G. Katsas, Assistant Attorney General, Civil Division,
Carol Federighi, Senior Litigation Counsel, Office of
Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Paul Rangolan, a citizen of Jamaica, petitions for review
of an order of the Board of Immigration Appeals (BIA) denying
his motion to reopen the BIA’s order of removal. Because
Rangolan has not raised a constitutional or legal question with
respect to that order of denial, we dismiss the petition for
lack of jurisdiction.
I.
In July 1987, the BIA granted Rangolan lawful permanent
resident status in the United States; however, in December 1998,
an immigration judge ordered his removal from this country as an
aggravated felon. Three months later, Rangolan illegally
reentered the United States. In June 2004, the Government
arrested Rangolan and later convicted him of using, carrying,
and possessing a firearm during a drug trafficking offense and
of illegal reentry following removal for conviction of an
aggravated felony.
When the Department of Homeland Security (DHS) took
Rangolan into custody after he served his criminal sentence, he
expressed fear of persecution or torture in Jamaica on account
of his (homosexual) sexual orientation. An asylum officer
conducted a “reasonable fear” interview pursuant to 8 C.F.R.
2
§ 208.31 (2008), and transferred the matter to an immigration
judge (IJ) for a hearing.
At his hearing, Rangolan conceded his ineligibility for
asylum because of his aggravated felony conviction, but he
argued that if removed to Jamaica, the government would
persecute and torture him because of his sexual orientation. He
testified that when deported to Jamaica in January 1999, he had
to move out of his brother’s house because the neighbors,
suspecting Rangolan was gay, threatened both him and his
brother. Rangolan further explained that he returned to the
United States shortly after an incident in which a crowd,
yelling homosexual slurs, chased him and a friend, hit the
friend on the head with a brick, and cut Rangolan with a broken
bottle. Finally, Rangolan’s sister testified at the immigration
hearing that neighbors killed Rangolan’s brother in July 1999
because of his relationship to Rangolan.
The IJ found Rangolan ineligible for withholding of removal
under the asylum statute and the Convention Against Torture
(“CAT”) because he had been convicted of a particularly serious
crime and because his prior crimes and his firearms collection
make him a danger to the community. However, the IJ found
Rangolan eligible for deferral of removal under CAT, reasoning
that it was more likely than not that Rangolan would be subject
to imprisonment and torture for homosexual acts if deported to
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Jamaica. In reaching this conclusion, the IJ cited the State
Department’s 2005 Country Report on Human Rights Practices in
Jamaica, which noted that public demonstrations of physical
intimacy between men was a crime punishable by imprisonment in
Jamaica, that there had been a number of incidents of civilian
violence against homosexuals that year, and that reports of
physical abuse of homosexual prisoners continued.
On August 16, 2007, the BIA granted DHS’s appeal, vacated
the IJ’s grant of CAT deferral, and ordered Rangolan removed to
Jamaica. The BIA found the IJ’s conclusion that Rangolan would
be tortured in Jamaica to be “based on a series of unsupported
suppositions” and concluded it not more likely than not that
“any torture the applicant may suffer in Jamaica would be by or
at the acquiescence of the government.”
Rangolan petitioned this court for review of the BIA’s
decision and sought a stay of removal. The government opposed
the stay and moved to dismiss the petition for lack of
jurisdiction. On October 23, 2007, over a dissent, we granted
the motion to dismiss and denied the motion to stay. Rangolan
v. Mukasey, No. 07-1838 (4th Cir. Oct. 23, 2007). We
subsequently denied Rangolan’s petition for rehearing and
rehearing en banc. Rangolan, No. 07-1838 (4th Cir. Nov. 21,
2007). The Supreme Court denied Rangolan’s application and re-
application for a stay of removal, Rangolan v. Mukasey, 128
4
S. Ct. 1331 (2008), and his petition for certiorari, Rangolan v.
Mukasey, 128 S. Ct. 2934 (2008).
On March 7, 2008, Rangolan moved to reopen his case with
the BIA and to stay his removal during the pendency of its
consideration of that motion. He claimed that “there is a
critical change in circumstances and/or a denial of due process
in his case.” Rangolan based his argument primarily on an
unpublished BIA decision issued December 18, 2007 in which the
BIA reversed the decision of an IJ and determined that a
homosexual Jamaican alien was eligible for statutory withholding
of removal because of his sexual orientation. On March 31,
2008, the BIA denied as untimely Rangolan’s motion to reopen
explaining that an applicant must file a motion to reopen within
90 days after a BIA decision, in this case on or before November
14, 2007 -- 90 days following the BIA’s August 16, 2007 decision
ordering Rangolan’s removal to Jamaica.
II.
Rangolan moves for a stay of removal and seeks review of
the BIA’s denial of his motion to reopen as untimely. The
government opposes this motion and moves for dismissal of
Rangolan’s petition, arguing that 8 U.S.C. § 1252(a)(2)(C)
(2006) deprives us of jurisdiction to review Rangolan’s
petition.
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Section 1252(a)(2)(C) provides in relevant part: “[N]o
court shall have jurisdiction to review any final order of
removal against an alien who is removable by reason of having
committed a criminal offense covered in section . . .
1227(a)(2)(A)(iii).” This statute generally deprives us of
jurisdiction to review a final order of removal issued against
an alien (like Rangolan) removable as an aggravated felon. But,
as the Government concedes, pursuant to “the Real ID Act’s
addition of new Section 242(a)(2)(D) to the INA . . . the
federal courts” retain jurisdiction to review such an order if
the case presents a constitutional claim or a question of law.
See 8 U.S.C. § 1252(a)(2)(D) (2006); see also Saintha v.
Mukasey, 516 F.3d 243, 248 (4th Cir. 2008).
Admittedly, no statute explicitly permits us to review the
BIA’s denial of a motion to reopen. See Sarmadi v. INS, 121
F.3d 1319, 1321 (9th Cir. 1997); Patel v. Att’y Gen., 334 F.3d
1259, 1261 (11th Cir. 2003). However, we believe that implicit
in our power to review a final BIA order is the power, in the
appropriate case, to review the denial of a motion to reopen
removal proceedings. See Stewart v. INS, 181 F.3d 587, 593 (4th
Cir. 1999) (noting that the Fourth Circuit and our “sister
circuits” “have traditionally interpreted ‘final order of
deportation’ . . . to include a BIA order denying a motion to
reopen”); see also Hanan v. Mukasey, 519 F.3d 760, 763 (8th Cir.
6
2008) (holding that the authority to review an order denying a
motion to reopen is implicit in the grant of authority to review
a final BIA order); Patel, 334 F.3d at 1261 (same); Sarmadi, 121
F.3d at 1321 (same); Chow v. INS, 113 F.3d 659, 664 (7th Cir.
1997) (same), abrogated on other grounds by LaGuerre v. Reno,
164 F.3d 1035 (7th Cir. 1998). 1
Tellingly, Rangolan does not suggest any other
jurisdictional basis permitting us to review the BIA’s denial of
a motion to reopen removal proceedings, and we can find none.
Thus, the general power to review any “final order of removal”
in § 1252(a)(1) provides a basis -- but our only basis -- to
review a denial of a motion to reopen.
For criminal aliens, Section 1252(a)(2) expressly limits
our power to review final orders of removal in § 1252(a)(1) to
constitutional and legal questions, and thus necessarily
restricts our review of a denial of a criminal alien’s motion to
reopen removal proceedings to constitutional and legal
questions. Five courts of appeals that have considered this
jurisdictional issue have reached the identical conclusion.
1
Notably, not even the Government argues to the contrary.
Moreover, in 1964, when the Ninth Circuit held that it did not
have jurisdiction to review a BIA’s denial of a motion to
reopen, the Supreme Court reversed that decision in a one-
sentence decision. See Giova v. Rosenburg, 379 U.S. 18 (1964).
As a result, it seems clear that the courts of appeals retain
jurisdiction to review motions to reopen removal proceedings
despite the lack of an explicit statutory grant.
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See, e.g., Hanan, 519 F.3d at 763; Cruz v. Att’y Gen., 452 F.3d
240, 246 (3d Cir. 2006); Patel, 334 F.3d at 1261-62; Sarmadi,
121 F.3d at 1321; Chow, 113 F.3d at 664; see also Pepaj v.
Mukasey, 509 F.3d 725, 727-28 (6th Cir. 2007) (holding that the
court lacked jurisdiction to review a denial of a motion to
reopen by a criminal alien where petitioner raised only an issue
of fact); Boakai v. Gonzales, 447 F.3d 1, 4 & n.5 (1st Cir.
2006) (same); Durant v. INS, 393 F.3d 113, 115-16 (2d Cir.
2004). 2
In the case at hand, Rangolan presents no constitutional or
legal question. Therefore, Rangolan’s petition for review is
DISMISSED.
2
We note that our decision in the case at hand does not in
any way conflict with our recent holding in Obioha v. Gonzales,
431 F.3d 400 (4th Cir. 2005). There, we addressed 8 U.S.C.
§ 1252(a)(2)(B)(i) (2006), which limits judicial review of “any
judgment regarding the granting of relief under” certain
immigration law provisions. That statute, unlike
§ 1252(a)(2)(C), does not limit a court’s jurisdiction to review
a final order of removal and therefore in that case, we had no
need to consider the relationship between a final order of
removal and a denial of a motion to reopen.
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