Lawrence v. INS ( 1996 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-60523
Summary Calendar
FITZROY NATHANIEL LAWRENCE,
Petitioner,
VERSUS
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
Appeal from the United States District Court
for the Western District of Louisiana
(A38-203-661)
November 26, 1996
Before JONES, DeMOSS and PARKER, Circuit Judges.
PER CURIAM:*
Fitzroy Nathaniel Lawrence (“Lawrence”) petitions this Court
for review of an order by the Board of Immigration Appeals (“BIA”)
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
dismissing his appeal on the basis that his notice of appeal lacked
specificity. For the following reasons, we deny the petition for
review and affirm.
FACTS AND PROCEEDINGS BELOW
The Immigration and Naturalization Service (“INS”) ordered
Lawrence, a citizen of Jamaica, to show cause why he should not be
deported under § 241(a)(2)(A)(iii) of the Immigration and
Nationality Act (“the Act”), 8 U.S.C. § 1251(a)(2)(A)(iii), which
provides that an alien convicted of an aggravated felony after
entry is deportable. The INS deemed Lawrence deportable because of
his 1993 conviction for possession of cocaine with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1). He had entered
this country as a legal permanent resident in 1983 at the age of
13.
With representation by counsel, Lawrence applied for a waiver
of inadmissibility pursuant to § 212(c) of the Act, 8 U.S.C.
§1182(c). Under that provision of the Act, an Immigration Judge
(“IJ”) has the discretion to waive deportation for lawful permanent
residents who have maintained a lawful domicile in this country for
at least seven consecutive years.1 In April of 1995, an IJ held a
deportation hearing and heard testimony and evidence regarding
1
Section 440(a) of the Anti-Terrorism and Effective Death
Penalty Act (“AEDPA”), Pub. L. 104-132, 100 Stat. 1214 (April 24, 1996),
removed the exercise of this discretion in favor of aliens with certain
types of convictions, among them, Lawrence’s offense.
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Lawrence’s application. The IJ denied relief from deportation,
finding that, while some favorable considerations supported
Lawrence’s application, he lacked a good employment record,
evidenced no particularly undue hardship, offered no particular
value or service to the community, and evidenced no genuine
rehabilitation. The IJ concluded that he had not met the
“heightened burden” of demonstrating “unusual and outstanding
equities” that might justify a waiver for those convicted of
serious drug offenses.
Lawrence filed a pro se notice of appeal to the Board of
Immigration Appeals (“BIA”), asserting in his Form EOIR-26 the
following as grounds for his appeal.
The Immigration Judge erred in denying the Respondent a waiver
because the Respondent demonstrated unusual and outstanding
equities, hardship of deportation, and rehabilitation. The
equities presented by the Respondent outweigh the negative
factors presented at the 212(c) hearing. Therefore, the
Respondent should have been granted a 212(c) waiver.
Form EOIR-26 (May 8, 1995). He also indicated affirmatively on the
form an intent to file a separate written brief or statement. That
did not materialize as Lawrence missed the brief’s due date. The
BIA summarily dismissed Lawrence’s appeal pursuant to 8 C.F.R. §
3.1(d)(1-a)(i)(A), stating that he “had not alleged any error which
could provide a basis for our review of the record.” In re
Lawrence (A38 203 661), (BIA, August 23, 1995). One member of the
panel concurred with the dismissal, but argued that the appeal
should have been disposed of on its merits, and found that
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Lawrence’s application did not warrant a discretionary waiver of
deportation. Id. (Filppu, concurring).
Lawrence filed a pro se petition for review of the BIA’s
decision with this Court, contending that the BIA should have taken
his appeal because he provided sufficient detail regarding the
grounds of his appeal. Currently in a detention facility, Lawrence
has also made a motion for release on bond or his own recognizance,
a motion for appointment of counsel, and a motion for transfer from
his present detention facility.
The BIA’s Dismissal of Lawrence’s Appeal
This Court has jurisdiction to review final deportation orders
of the BIA pursuant to 8 U.S.C. § 1105a(a).2 We review summary
dismissals based on the lack of specificity in a notice of appeal
for an abuse of discretion. Medrano-Villatoro v. INS, 866 F.2d
132, 134 (5th Cir. 1989).
Under its regulations, the BIA is permitted to dismiss an
appeal summarily if the appealing party “fails to specify the
grounds for the appeal.” See 8 C.F.R. § 3.1(d)(1-a)(i)(A);
Verduzco-Arevalo v. INS, 989 F.2d 186, 187 (5th Cir. 1993) (citing
2
While neither party raised the issue of our jurisdiction, we
note that in Mendez-Rosas v. INS, 87 F.3d 672 (5th Cir. 1996), petition for
cert. filed, (Sept. 23, 1996) (No. 96-6076), we decided that the AEDPA’s
amendment to the Act’s provisions regarding judicial review of final orders
of deportation withdrew jurisdiction of pending appeals where jurisdiction
was withdrawn. However, in the AEDPA, Congress added a new definition of
“order of deportation” to the Act that does not seemingly encompass this
case given that it was summarily dismissed. We assume arguendo that we
retain jurisdiction of this particular appeal.
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Medrano-Villatori, 866 F.2d at 133).
The Board did not abuse its discretion by summarily dismissing
Lawrence’s appeal. We have previously explained that if a question
of law is presented, supporting authority must be cited, and if an
appeal concerns the facts, then the particular details at issue
must be identified. Medrano-Villatoro, 866 F.2d at 134. We have
also explained that if the appeal concerns the denial of
discretionary relief, then the statement of reasons for the appeal
must disclose whether the alleged error derives from the grounds of
eligibility or from the exercise of discretion. Id.
Lawrence’s appeal notice consisted of a generalized and
conclusory statement claiming error. See Townsend v. U.S. Dep’t of
Justice INS, 799 F.2d 179, 182 (5th Cir. 1986). He merely restated
the well-established factors involved in the exercise of § 212(c)’s
discretion and asserted that the IJ erred. Absent from Lawrence’s
notice are the particular details contested. Because it is unclear
which pieces of the evidence are in contention, the BIA was left to
guess how and why the petitioner thought that the IJ erred. See
Lozada v. INS, 857 F.2d 10, 13 (1st Cir. 1988). The appellant is
not required to argue fully his position, nor to set out his
reasons for appeal in a brief or statement separate from the form.
See Medrano-Villatori, 866 F.2d at 134. Nevertheless, the
appellant must provide a statement informing the BIA what aspects
of the decision were wrong and why. See Candelo v. Bd. of Imm.
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Appeals Executive Office for Imm. Review, 989 F.2d 502, 1993 WL
58240, at *1 (7th Cir. 1993).
B. Motion for Appointment of Counsel
Lawrence requests the appointment of counsel. An alien has a
right to counsel in an immigration proceeding under the due process
clause of the Fifth Amendment, but must retain legal counsel at his
own expense or pro bono. Ogbemudia v. INS, 988 F.2d 595, 598 (5th
Cir. 1993).
The motion for appointment of counsel is DENIED.
C. Motion for Release
Lawrence requests release from detention on his own
recognizance or on bond. This Court lacks jurisdiction to rule on
Lawrence’s motion for release.
Congress has plainly directed, in 8 U.S.C. § 1252(a), that any
discretionary decision regarding release is to be made by the
Attorney General or her representatives. Any alien’s application
for bail or bond must be submitted directly to the Attorney
General, whose ruling is subject to review by a district court in
proceedings separate and distinct from deportation proceedings. 8
U.S.C. § 1252(a)(1); In re Ghalamsiah, 806 F.2d 68, 73 (3rd Cir.
1986); See also Young v. U.S. Dept. of Justice, INS, 759 F.2d 450,
457 (5th Cir.), cert. denied, 474 U.S. 996, 106 S. Ct. 412, 88 L.
Ed. 2d 362 (1985). Of course, the Act also precludes the Attorney
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General from releasing from custody an alien with Lawrence’s drug
conviction. See 8 U.S.C. § 1252(b) (“The Attorney General shall
take into custody any alien convicted of any criminal offense
covered in section 1251(a)(2)(A)(iii), (B), (C), or (D) of this
title...[and] the Attorney General shall not release such felon
from custody.”).
Lawrence’s motion for release on bond or his own recognizance
is DISMISSED for lack of jurisdiction.
D. Motion for Transfer
Lawrence requests transfer from his current detention
facility, a county jail, back to the federal detention center at
which he was first detained. He maintains that, at the county
jail, he is unable to represent himself effectively, and also
suggests that he is unable to receive appropriate medical treatment
for an eye condition. Like the motion above, this Court lacks
jurisdiction to address this issue. This Court would have
jurisdiction over an appeal from a district court of either a 43
U.S.C. § 1983 action brought against a state official or an action
against a federal official brought under 5 U.S.C. § 702.
The motion for transfer is DISMISSED for lack of jurisdiction.
CONCLUSION
The petition for review is denied and the order of the BIA is
AFFIRMED. The Motion for appointment of counsel is DENIED, and
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the Motions for release and transfer are DISMISSED.
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