Montrevil v. Gonzales ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1855
JEAN MURAT MONTREVIL,
Petitioner,
versus
ALBERTO R. GONZALES, Attorney General of the
United States,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A40-135-785)
Submitted: February 28, 2006 Decided: March 16, 2006
Before WILKINSON, WILLIAMS, and GREGORY, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Jean Murat Montrevil, Petitioner Pro Se. Virginia Benson Evans,
John Walter Sippel, Jr., OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland; Song E. Park, Office of Immigration
Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Jean Murat Montrevil, a native and citizen of Haiti,
petitions this court for review of a 1994 decision of the Board of
Immigration Appeals (“Board”) finding him ineligible for § 212(c)
waiver of deportation under 8 U.S.C. § 1182(c) (1994) (repealed in
1996). Montrevil filed this proceeding in the district court as a
28 U.S.C. § 2241 (2000) petition for habeas corpus relief. The
district court properly transferred the proceeding to this court
upon enactment of the REAL ID Act of 2005, Pub. L. No. 109-13, 119
Stat. 231, 311 (“the Act”).* In accordance with the Act, we have
reviewed Montrevil’s case “as if it had been filed pursuant to a
petition for review” under 8 U.S.C.A. § 1252 (West 2000 & Supp. II
2005). 119 Stat. at 311.
Although a current challenge to a 1994 Board decision
would normally be untimely under § 1252(b)(1), § 106(c) renders the
normal time limits inapplicable to cases transferred under that
provision. 119 Stat. at 311. The Board found Montrevil ineligible
for § 212(c) relief because, by the time of its decision, Montrevil
had been imprisoned for over five years on an aggravated felony
conviction. Under a 1990 amendment to § 212(c), “aliens convicted
of an aggravated felony who had served a term of imprisonment of at
*
Section 106(c) of the Act requires the transfer of any § 2241
petition filed by an alien and challenging, among other things, a
final administrative order of deportation pending in the district
court on the effective date of the Act, May 11, 2005. 119 Stat. at
311.
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least five years” are barred from seeking the discretionary waiver
under § 212(c). DeOsorio v. INS, 10 F.3d 1034, 1036 (4th Cir.
1993). At the time of the immigration judge’s decision denying
Montrevil § 212(c) relief in the exercise of his discretion,
Montrevil was ten days short of having served five years on his
aggravated felony. By the time of the Board’s decision, he had
served over five years, and the Board therefore found him
ineligible for § 212(c) relief. On appeal, Montrevil challenges
this ruling.
The First Circuit has recently affirmed the position
taken by the Board in this case that “an alien continues to accrue
time toward the five-year bar to section 212(c) relief after the
issuance of a final order of removal.” Fernandes Pereira v.
Gonzales, 417 F.3d 38, 42 (1st Cir. 2005). See also Buitrago-
Cuesta v. INS, 7 F.3d 291, 293-96 (2d Cir. 1993) (holding that the
five year period is not measured as of the date the § 212(c)
application is filed but as of the time of the final administrative
decision). We agree with these decisions and therefore deny
Montrevil’s petition for review. We dispense with oral argument
because the facts and legal contentions are adequately presented in
the materials before the court and argument would not aid the
decisional process.
PETITION DENIED
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