Hamel Ian Sankar v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 9, 2008
No. 07-15971 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A34-613-747
HAMEL IAN SANKAR,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(July 9, 2008)
Before ANDERSON, HULL and PRYOR, Circuit Judges
PER CURIAM:
Hamel Ian Sankar, a citizen and resident of Canada, petitions this Court for
review of the decision of the Board of Immigration Appeals that dismissed his
appeal of the denial of his motion to reopen his removal proceedings. Sankar
argues that the Board erroneously concluded that the Immigration Judge did not
have jurisdiction over his motion because he was outside the United States. We
deny the petition.
Sankar, a native and citizen of Canada, first entered the United States in
1977. In 2004, Sankar was convicted of possession of cocaine in violation of
Florida law. Fla. Stat. §§ 893.13(6)(A), 893.02(2)(a)(4). In 2005, the Department
of Homeland Security commenced removal proceeding against Sankar based on his
convictions. Sankar admitted the allegations, conceded removability, and was
removed to Canada.
Almost two years later, Sankar filed a motion to reopen his removal
proceedings. The Immigration Judge denied the motion because Sankar was no
longer in the United States. 8 C.F.R. § 1003.23(b)(1). Sankar filed another motion
to reopen that was also denied by the Immigration Judge. Sankar appealed to the
Board, but the Board dismissed Sankar’s appeal.
We review the denial of a motion to reopen for abuse of discretion.
Contreras-Rodriguez v. U.S. Att’y Gen., 462 F.3d 1314, 1316 (11th Cir. 2006).
Although the government argues that this Court does not have jurisdiction over this
appeal because we do not have jurisdiction over final orders removing aliens who
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committed a covered crime, we have jurisdiction if the alien, as here, raises a
“constitutional claim or question[] of law,” 8 U.S.C. § 1252(a)(2)(D).
The Immigration Judge did not have jurisdiction to consider Sankar’s
motion to reopen. The regulation governing the consideration of a motion to
reopen prohibits an Immigration Judge from hearing a motion filed by individuals
outside the United States. 8 C.F.R. § 1003.23(b)(1). It is undisputed that Sankar
was in Canada when he filed his motion to reopen.
Sankar argues that, because his deportation was “unlawful,” this Court
should not give effect to those regulations, but we disagree. Sankar contends that
his removal was “unlawful” because under Lopez v. Gonzales, 549 U.S. 47, 127 S.
Ct. 625 (2006), decided eighteen months after he returned to Canada, his criminal
convictions were insufficient for removal. Sankar’s argument is meritless. The
decision Sankar relies upon to support his theory involved a procedurally defective
removal. Mendez v. INS, 563 F.2d 956, 958 (9th Cir. 1977).
Sankar’s petition for review is DENIED.
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