Clarke v. Gonzales

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 06-1372
TENISON CLARKE,
Petitioner,
v.
ALBERTO GONZALES,
Attorney General of the United States,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.
Kevin R. Murphy on brief for petitioner.
Richard Zanfardino, Trial Attorney, Peter D. Keisler,
Assistant Attorney General, and Greg D. Mack, Senior Litigation
Counsel, Office of Immigration Litigation, on brief for respondent.
October 18, 2006
Per Curiam. Tenison Clarke, a native of Barbados, was
ordered removed from this country by an Immigration Judge on July
23, 2004. Clarke was found removable on the basis of his
conviction of an aggravated felony, see 8 U.S.C.
§ 1227(a)(2)(A)(iii), that is, his February 7, 1986 conviction in
state court of the crime of rape and abuse of a child, see Mass.
Gen. Laws ch. 265, § 23.
The Board of Immigration Appeals (BIA) affirmed the order
of removal on January 30, 2006. The BIA agreed with the IJ that
Clarke was removable as an aggravated felon and that Clarke was
ineligible for waiver of inadmissibility under § 212 of the
Immigration and Naturalization Act. It held there was no error in
the IJ's denial of Clarke's motion to terminate proceedings to
permit him to pursue a naturalization application (on the grounds
that he was not prima facie eligible for naturalization and his
lack of good moral character disqualified him as well).
Clarke had been charged with removability in a Notice to
Appear, served on him on February 2, 2001. This date subjected him
to the terms of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat.
3009. See Choeum v. INS 129 F.3d 29, 37 (1st Cir. 1997).
On petition for review in this court, Clarke purports to
make a constitutional argument. The respondent appropriately
agrees that this court has jurisdiction over that argument under 8
-2-
U.S.C. § 1252(a)(2)(D), although normally there is a jurisdictional
bar to review of aggravated felony determinations under 8 U.S.C.
§ 1252(a)(2)(C).
Clarke concedes that his crime is defined by IIRIRA as an
aggravated felony. He argues1 that this does not show that
Congress intended to render him removable and that such a result
would be unconstitutional because he would then be treated
differently from similarly situated felons who were placed into
removal proceedings before September 30, 1996 and were still
eligible for waiver of inadmissibility.
Clarke's claims are foreclosed by this court's decision
in Sena v. Gonzales, 428 F.3d 50, 52-53 (1st Cir. 2005), and our
earlier decisions in Choeum, 129 F.3d at 37, Seale v. INS, 323 F.3d
150, 157-59 (1st Cir. 2003), and Sousa v. INS, 226 F.3d 28, 33-34
(1st Cir. 2000).
Counsel for Clarke cited none of these obviously relevant
cases. Counsel should not repeat such omissions in any future
briefs submitted to this court.
The petition for review is denied. So ordered.
1
He does not petition for review of the naturalization
portion of the BIA's opinion.
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