Nevon Milton v. Eric Holder, Jr. , 425 F. App'x 407 ( 2011 )

Case: 10-60696 Document: 00511481759 Page: 1 Date Filed: 05/18/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 18, 2011
No. 10-60696
Summary Calendar Lyle W. Cayce
Clerk
NEVON MILTON,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petitions for Review of an Order of the
Board of Immigration Appeals
BIA No. A087 470 786
Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Petitioner, Nevon Milton, a native and citizen of Jamaica, seeks review of
the Board of Immigration Appeals (BIA) order of June 30, 2010, in which the
BIA dismissed his appeal of an order of removal due, in part, to his 2009 Florida
conviction of possession of ecstasy with intent to sell. Milton, appearing pro se,
challenges the BIA’s dismissal of his appeal by arguing that the Florida
conviction upon which the removal order is based is invalid, as he received
constitutionally ineffective assistance of counsel when counsel advised him to
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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No. 10-60696
plead guilty in the criminal proceeding without informing him of the
immigration consequences of the conviction. He relies upon Padilla v. Kentucky,
130 S. Ct. 1473, 1486 (2010), to support this assertion. He further contends that
he is seeking postconviction relief from his criminal conviction on this basis and
that the unconstitutional conviction should not form the basis for his order of
removal. Milton also argues that his attorney provided ineffective representation
in immigration proceedings.
Milton has filed two petitions challenging the June 30, 2010, order, one in
the Ninth Circuit Court of Appeals and another in the Second Circuit Court of
Appeals. Both courts transferred the petitions to this court, as Milton’s
immigration proceeding took place in Oakdale, Louisiana, and venue is therefore
proper in this court. See 8 U.S.C. § 1252(b)(2); 28 U.S.C. § 1631. As Milton’s
petition was timely filed in the Ninth Circuit, the petition is considered to have
been timely filed with this court. See § 1631. The petition that Milton filed in
the Second Circuit is substantially similar to the petition that Milton filed with
the Ninth Circuit, except the petition was not timely filed. A timely petition for
review is a jurisdictional requirement, and the lack thereof deprives this court
of jurisdiction. § 1252(a)(1), (b)(1); Karimian-Kaklaki v. INS, 997 F.2d 108, 111
(5th Cir. 1993).
Although Milton contends that he received constitutionally ineffective
assistance in connection with his prior conviction, he does not challenge the
BIA’s determination that his 2009 Florida conviction of possession of ecstasy
with intent to sell qualifies as a drug trafficking, aggravated felony for federal
immigration purposes. See 8 U.S.C. § 1101(a)(43)(B), § 1101(a)(48)(A); 8 U.S.C.
§ 1227(a)(1)(B), (a)(2)(A)(iii), (a)(2)(B)(i). Milton has therefore failed to preserve
this issue. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).
This court generally has the authority to review the order of the BIA and
will consider the underlying decision of the IJ only insofar as it influenced the
BIA’s decision. Zhu v. Gonzales, 493 F.3d 588, 593 (5th Cir. 2007). The BIA’s
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factual findings are reviewed for substantial evidence and its rulings of law are
reviewed de novo, with deference to the BIA’s interpretation of immigration
statutes. Mireles-Valdez v. Ashcroft, 349 F.3d 213, 215 (5th Cir. 2003). Because
Milton’s Florida conviction for possession of ecstasy with intent to sell is both a
controlled substance offense and an aggravated felony that rendered him
removable, this court’s jurisdiction is limited to colorable constitutional issues
and questions of law. See § 1252(a)(2)(C),(D) (providing that courts lack
jurisdiction over final orders of removal against criminal aliens, except courts
retain jurisdiction over constitutional claims or questions of law).
Milton’s argument is essentially a collateral attack on a prior conviction,
which is not permitted in an appeal of a deportation order. See Brown v. INS,
856 F.2d 728, 731 (5th Cir. 1988); see also Zinnanti v. INS, 651 F.2d 420, 421
(5th Cir. 1981). Also, the BIA correctly determined that a pending collateral
attack on a conviction does not disturb the finality of the conviction for
immigration purposes. See Cabral v. Holder, 632 F.3d 886, 890 (5th Cir. 2011).
Further, Padilla did not involve an appeal of an adverse immigration decision,
and thus does not indicate that Milton may pursue a Padilla-based claim of
ineffective assistance of counsel in immigration proceedings in an effort to
collaterally challenge his prior conviction. See Padilla, 130 S. Ct. at 1475-87.
Padilla also does not suggest that immigration proceedings must be stayed while
a Padilla-type claim is being pursued in postconviction proceedings. See id.
Finally, to the extent that Milton is contending that he received ineffective
assistance of counsel in immigration proceedings, Milton has failed to establish
that he complied with the procedural requirements for pursuing such a claim.
See Mai v. Gonzales, 473 F.3d 162, 165 (5th Cir. 2006); Matter of Lozada, 19 I&N
Dec. 637 (BIA 1988); Matter of Compean, 25 I&N Dec. 1, at *3 (BIA 2009).
For the foregoing reasons, Milton’s petitions for review are DENIED.
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