Franklyn Allen v. Attorney General United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-2861
___________
FRANKLYN BURNEL ALLEN,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A036-545-538)
Immigration Judge: Walter A. Durling
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 18, 2013
Before: RENDELL, GREENAWAY, JR. and ALDISERT, Circuit Judges
(Opinion filed: December 18, 2013)
___________
OPINION
___________
PER CURIAM
Pro se petitioner Franklyn Burnel Allen petitions for review of the final removal
order of the Board of Immigration Appeals (“BIA”). For the reasons that follow, we will
grant the petition for review.
Because we write primarily for the parties, we present an abbreviated summary of
the background. Allen is a native and citizen of Jamaica. He was admitted to the United
States as a lawful permanent resident in December 1978, at age sixteen. In September
2010, in Pennsylvania state court, he was convicted of one count each of possession of a
small amount of marijuana (35 Pa. Stat. Ann. § 780-113(a)(31)) and possession of drug
paraphernalia (35 Pa. Stat. Ann. § 780-113(a)(32)). In 2012, the Government served
Allen with a Notice to Appear (“NTA”), charging him with removability under INA
section 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i), for a conviction of a controlled
substance violation. The drug paraphernalia conviction was listed as the underlying
offense in the NTA. Allen appeared pro se in the immigration proceedings and admitted
the factual allegations in the NTA--namely, that he is a citizen of Jamaica admitted to the
United States as a lawful permanent resident, and that he was convicted in September
2010 of possession of drug paraphernalia.
Initially, the Immigration Judge (“IJ”) granted continuances to allow Allen to
pursue post-conviction relief in state court. At a hearing on February 21, 2013, the IJ
noted that it seemed unlikely that Allen would prevail on his then-pending state court
petition for post conviction relief. The IJ also determined that Allen is statutorily
ineligible for cancellation of removal because he was granted discretionary relief in 1988
under former INA § 212(c), for a prior conviction.1 See INA § 240A(c)(6), 8 U.S.C.
1
As the Government notes, the administrative record contains evidence of Allen’s drug
offenses in the 1980s. In his prior immigration proceedings, Allen conceded
2
§ 1229b(c)(6). Nevertheless, the IJ acknowledged that Allen presented a very
sympathetic case and encouraged him to return to the immigration court if he succeeded
in having his conviction vacated. (A.R. 79, 102.) Allen appealed to the BIA and also
filed a motion to remand, providing evidence that the state court indeed had vacated his
drug paraphernalia conviction. (See A.R. 16.) The BIA denied the motion for remand
and dismissed Allen’s appeal, stating that Allen remains removable because his
marijuana possession offense2 is sufficient to support the controlled substance violation
removability charge.
This petition for review followed. We generally have jurisdiction under 8 U.S.C.
§ 1252(a) to review final orders of removal. Because the BIA concluded that Allen is
removable as an alien convicted of a controlled substance offense, our jurisdiction is
limited to review of constitutional or legal questions. See 8 U.S.C. § 1252(a)(2)(C)-(D).
We review these issues de novo. See Roye v. Att’y Gen., 693 F.3d 333, 339 (3d Cir.
2012). Where, as here, the BIA issues its own decision, rather than adopting the IJ’s
decision, we review the BIA’s decision. See id.
The parties do not dispute that Allen’s drug paraphernalia conviction has been
vacated by the state court. Allen argues that the BIA erred in concluding that he
removability on the basis of his June 1985 state court conviction for marijuana possession
with intent to deliver. (A.R. 129.)
2
The BIA referred to Allen’s possession offense as an “amended criminal charge,”
without explanation.
3
continues to be removable based on his September 2010 marijuana possession offense.
We acknowledge the Government’s argument that Allen did not exhaust this argument
before the BIA, as is required for our jurisdiction. See 8 U.S.C. § 1252(d)(1).
Specifically, the Government asserts that Allen did not directly challenge his
removability and sought only a remand to the IJ for consideration of cancellation of
removal under 8 U.S.C.§ 1229b(a), in light of the drug paraphernalia conviction’s having
been vacated. We disagree. In his pro se brief to the BIA, Allen explicitly identified the
finding of removability in his enumerated statement of issues presented, noting that the
drug paraphernalia conviction had been vacated. (See A.R. 27.) In addition, although he
sought cancellation of removal in his BIA brief and in his motion to reopen and remand
to the IJ, he also argued in favor of “any form of relief from removal to which he may be
entitled.” (A.R. 28, 31.) We conclude that Allen sufficiently exhausted the argument
that he is no longer removable. As for the argument that his September 2010 conviction
for possession of a small amount of marijuana is not a removable offense, we surmise
that Allen did not raise this issue to the BIA because the IJ did not consider this offense at
all in his decision. As the Government notes, the exhaustion requirement may be
satisfied when the BIA sua sponte considers an otherwise unexhausted issue. See Lin v.
Att’y Gen., 543 F.3d 114, 126 (3d Cir. 2008). Such is the situation here. We are
satisfied that we have jurisdiction to consider Allen’s arguments contesting his
removability on the basis of the marijuana possession offense.
4
The removal statute in this case provides that an alien is removable for having
been convicted of a controlled substance violation “other than a single offense involving
possession for one’s own use of 30 grams or less of marijuana.” 8 U.S.C
§ 1227(a)(2)(B)(i). The Pennsylvania statute implicated here criminalizes the possession
of a “small amount” of marijuana for personal use, noting that thirty grams of marijuana
is considered to be a “small amount” of marijuana. See 35 Pa. Stat. Ann. § 780-
113(a)(31). Thus, Allen’s primary argument,3 as we understand it, is that his September
2010 marijuana possession conviction falls squarely within the exception to removability
contained in 8 U.S.C. § 1227(a)(2)(B)(i), and that the BIA erred in relying upon that
conviction as a basis for his removal. Allen emphasizes that the underlying factual basis
to support the removability charge, i.e., the drug paraphernalia conviction, no longer
exists. The Government responds, in part, with the argument that Allen’s September
2010 marijuana possession offense does not constitute a “single offense” for purposes of
the statutory exception to removal, because Allen has had other drug offenses. To
support its argument, the Government points to record evidence of Allen’s drug offenses
during the early to mid-1980s, which the Government asserts were not specifically within
the scope of the BIA’s grant of discretionary relief under former INA § 212(c).
Although the Government presents an interesting question of whether Allen’s
September 2010 marijuana possession offense constitutes a “single offense” in this
3
Allen’s brief contains a number of legal arguments, but we need not reach them all in
light of our ruling today.
5
context, we need not reach this question. Allen’s petition for review turns on a more
fundamental issue: whether the BIA erred in upholding the IJ’s removal order when the
criminal offense basis for the removability charge--Allen’s drug paraphernalia
conviction--has ceased to exist. On this issue, we conclude that the BIA erred. Further,
the BIA’s decision does not contain any reasoning to support its conclusion that Allen’s
September 2010 possession offense suffices to sustain the removability charge. Indeed,
the Government points to nothing in the record to show that the removability charge ever
was based on the September 2010 possession offense, that Allen ever received written
notice of new factual allegations to support the removability charge, or that Allen ever
had an opportunity either to concede or to contest the removability charge based on new
factual allegations. See 8 C.F.R. § 1003.30; 8 C.F.R. 1240.10(c), (e). Though the
Government offers possible explanations for the BIA’s decision, we confine our review
to the reasons articulated by the BIA. See Berishaj v. Ashcroft, 378 F.3d 314, 330 (3d
Cir. 2004) (“[C]ourts reviewing the determination of an administrative agency must
approve or reject the agency’s action purely on the basis of the reasons offered by, and
the record compiled before, the agency itself.”).
For the foregoing reasons, we will grant the petition for review and remand the
matter for further proceedings consistent with this opinion.
6