Kenrick Glenfield Eastmond v. U.S. Attorney Gen.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-13191 APRIL 22, 2009
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
Agency No. A35-219-143
KENRICK GLENFIELD EASTMOND,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(April 22, 2009)
Before TJOFLAT, DUBINA and ANDERSON, Circuit Judges.
PER CURIAM:
Kendrick Glenfield Eastmond, pro se, petitions for review of the Board of
Immigration Appeals’ (BIA) decision, affirming the immigration judge’s (IJ) order
of removal resulting from his conviction for possession with intent to distribute
cocaine base, in violation of 21 U.S.C. § 841(a)(1). On appeal, Eastmond argues
that (1) the BIA erred in finding that his conviction, which was not a drug
trafficking crime, was an aggravated felony, and (2) the IJ abused its discretion and
violated his due process rights by not granting him a continuance in his
immigration hearing in order to resolve a “situation” in his criminal case.
We review de novo whether we have jurisdiction to consider a petition for
review. Ruiz v. Gonzales, 479 F.3d 762, 765 (11th Cir. 2007). We lack
jurisdiction to review a final order of removal when the alien is removable for
having committed a criminal offense covered in Immigration and Nationality Act
(INA) 1227(a)(2)(A)(iii), (a)(2)(B). 8 U.S.C. § 1252(a)(2)(C); Savoury v. U.S.
Att’y Gen., 449 F.3d 1307, 1311 (11th Cir. 2006). We have held, however, that,
under § 1252, we retain jurisdiction to review whether the petitioner meets the
qualifications for the jurisdictional bar, which require a finding that he (1) is an
alien, (2) who is removable, (3) by reason of having committed a crime covered by
§ 1252(a)(2)(C). Savoury, 449 F.3d at 1311. Additionally, notwithstanding
§ 1252(a)(2)(C), we have jurisdiction to review constitutional claims or questions
of law. 8 U.S.C. § 1252(a)(2)(D); Savoury, 449 F.3d at 1311. We do not have
jurisdiction, however, to consider claims that were not raised before the BIA.
2
Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250-51 (11th Cir. 2006).
Pursuant to § 1227, an alien is removable if he is convicted of (1) an
aggravated felony, see 8 U.S.C. § 1227(a)(2)(A)(iii), or (2) violated a law related to
a controlled substance, see id. § 1227 (a)(2)(B)(i). An offense is an aggravated
felony for immigration purposes if it involves the trafficking of a controlled
substance, including a “drug trafficking crime,” as defined by 18 U.S.C. § 924(c).
8 U.S.C. § 1101(A)(43)(B). “Drug trafficking crime” is defined as any felony
punishable under the CSA. 18 U.S.C. § 924(c). A crime is a felony if the statutory
maximum term of imprisonment is more than one year. See 18 U.S.C. § 3559(a).
Pursuant to the Controlled Substances Act (CSA), 21 U.S.C. § 801, et seq, it is
unlawful for an individual to knowingly possess with intent to distribute a
controlled substance. 21 U.S.C. § 841(a)(1). The maximum sentence for a crime
involving cocaine is 20 years’ imprisonment. Id. § 841(b)(1)(C).
The IJ did not err in finding that Eastmond’s conviction was an aggravated
felony because his violation of § 841(a)(1) was a felony punishable under the CSA.
We lack jurisdiction to consider Eastmond’s argument that the IJ abused his
discretion and violated Eastmond’s due process rights by not granting a
continuance because he did not raise this issue before the BIA.1
PETITION DENIED IN PART, DISMISSED IN PART.
1
Eastmond’s motion for leave to file his reply brief out of time is granted.
3