Hameed Al-Rekabi v. Ashcroft

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 16 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
HAYDAR HAMEED AL-REKABI,
Petitioner,
v. No. 03-9560
(BIA No. A70-397-352)
JOHN ASHCROFT, (Petition for Review)
Respondent.
ORDER AND JUDGMENT *
Before HARTZ , and BALDOCK , Circuit Judges, and BRIMMER , ** District
Judge.
Petitioner Haydar Hameed Al-Rekabi petitions for review of the final order
of removal issued against him by the Board of Immigration Appeals (BIA) on
April 22, 2003. Respondent John Ashcroft, Attorney General, moves to dismiss
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
**
The Honorable Clarence A. Brimmer, District Judge, United States District
Court for the District of Wyoming, sitting by designation.
Petitioner’s petition, arguing that this court is without jurisdiction to review the
BIA’s final order of removal against an alien, such as Petitioner, who is
removable by reason of having committed a criminal firearms offense covered by
8 U.S.C. § 1227(a)(2)(C). See 8 U.S.C. § 1252(a)(2)(C). We grant Respondent’s
motion.
BACKGROUND
Petitioner, a native and citizen of Iraq, was admitted to the United States as
a refugee on March 29, 1995. On June 21, 2001, Petitioner pleaded guilty in Utah
state court to the attempted purchase or possession of a dangerous weapon, a class
A misdemeanor. On May 21, 2002, the Immigration and Naturalization Service
(INS) 1 issued Petitioner a notice to appear, charging him with being removable
under § 237(a)(2)(C) of the Immigration and Nationality Act, codified at 8 U.S.C.
§ 1227(a)(2)(C), as a result of this conviction.
At a hearing before an immigration judge (IJ) on November 4, 2002,
Petitioner, through counsel, admitted the factual allegations against him and
conceded the charge of removability, but sought asylum, withholding of removal,
and relief under the Convention Against Torture (CAT). On December 2, 2002,
1
“The INS ceased to exist on March 1, 2003, and its functions were
transferred to the U.S. Citizenship and Immigration Services (“USCIS”) within
the newly formed Department of Homeland Security.” Sviridov v. Ashcroft ,
358 F.3d 722, 724 n.1 (10th Cir. 2004).
-2-
the IJ issued an oral decision finding that “removability has been established by
clear, unequivocal and convincing evidence.” Admin. R. at 45. But the IJ
granted Petitioner’s request for asylum, stating, “I think [Petitioner is] a little
gang banger that . . . doesn’t want to admit anything. But . . . it’s obvious from
looking at the State Department Report . . . . [that if] this guy goes back to Iraq,
he’s in trouble.” Id. at 48.
The INS appealed the IJ’s decision to the BIA. On April 22, 2003, the BIA
vacated the IJ’s December 2, 2002, decision, and ordered Petitioner removed from
the United States. Petitioner had, in the BIA’s words, “failed to demonstrate
either past persecution or a well-founded fear of persecution ‘on account of’ a
ground enumerated in the Act.” Id. at 3. According to the BIA, the IJ had erred
by granting Petitioner asylum “based solely upon speculation as to what [his]
situation may be if returned to Iraq.” Id. This petition for review followed.
ANALYSIS
“Although we ultimately hold that we do not have jurisdiction to review
Petitioner’s petition, we do have jurisdiction to determine the applicability of the
jurisdictional bar of [8 U.S.C.] § 1252(a)(2)(C).” Khalayleh v. INS , 287 F.3d
978, 979 (10th Cir. 2002). See Tapia Garcia v. INS , 237 F.3d 1216, 1220 (10th
Cir. 2001) (this court retains jurisdiction “to determine whether the jurisdictional
bar applies” by deciding “whether the petitioner is (i) an alien (ii) deportable
-3-
(iii) by reason of a criminal offense listed in the statute”). Petitioner’s alienage is
not in dispute. And, as previously mentioned, Petitioner admitted the factual
allegations contained in the notice to appear and conceded the charge of
removability. He likewise conceded during his merits hearing that he had pleaded
guilty to possession of a dangerous weapon, for which he served 187 days in jail.
Section 1252(a)(2)(C) of Title 8 to the United States Code bars judicial
review of final orders of removal entered “against an alien who is removable by
reason of having committed a criminal offense covered in section . . . 1227(a)(2)
. . . (C) . . . of this title.” Section 1227(a)(2)(C) of Title 8 provides:
Any alien who at any time after admission is convicted under any law
of purchasing, selling, offering for sale, exchanging, using, owning,
possessing, or carrying, or of attempting or conspiring to purchase ,
sell, offer for sale, exchange, use, own, possess , or carry, any
weapon, part, or accessory which is a firearm or destructive device
(as defined in section 921(a) of Title 18) in violation of any law is
deportable.
(Emphasis added). Petitioner is removable by reason of having committed a
criminal offense covered by 8 U.S.C. § 1227(a)(2)(C). And 8 U.S.C.
§ 1252(a)(2)(C) precludes us from reviewing the BIA’s April 22, 2003, final
order of removal.
Petitioner contends that the issue before us is whether he should be granted
asylum or relief under the CAT, not whether he was convicted of an offense
rendering him removable. This contention misses the essential point. He is
-4-
asking for review of an order of removal. And given his conviction, such review
is barred by statute. Although he suggests that there may be constitutional limits
on such a jurisdictional bar, he presents no argument why there is such a limit
here.
Because we lack jurisdiction to review Petitioner’s petition, Respondent’s
motion to dismiss is GRANTED and Petitioner’s petition for review is
DISMISSED.
Entered for the Court
Harris L Hartz
Circuit Judge
-5-