Hohn v. Attorney General

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
12-20-2005
Hohn v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-4727
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-4727
DAVID LENWORTH HOHN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
PETITION FOR REVIEW OF A DECISION OF
THE BOARD OF IMMIGRATION APPEALS
Agency No. A29-866-663
Submitted Under Third Circuit LAR 34.1(a)
November 17, 2005
Before: BARRY and AMBRO, Circuit Judges, and POLLAK,* District Judge
(Opinion Filed: December 20, 2005)
OPINION
BARRY, Circuit Judge
David Lenworth Hohn, a native of Jamaica and citizen of both Jamaica and
*
The Honorable Louis H. Pollak, District Judge, United States District Court for the
Eastern District of Pennsylvania, sitting by designation.
Canada, seeks review of a Board of Immigration Appeals (“BIA”) decision pretermitting
his application for cancellation of removal under the Immigration and Naturalization Act
(“INA”) § 240A(a), 8 U.S.C. § 1229b(a). Because we write primarily for the parties in
this matter, we will dispense with a full recitation of the facts and limit our discussion
only to those facts necessary to reach our decision.
Hohn initially entered the United States on a visitor’s visa in 1987. In September
1990, he was convicted of conspiracy to transport aliens, in violation of 8 U.S.C. §
1324(a)(1)(B). Despite this conviction, Hohn became a lawful permanent resident in July
1993. In January 2000, he was convicted in the Superior Court, Essex County, New
Jersey, of one count of Possession of a Controlled Dangerous Substance and two counts
of Possession of a Weapon in the Third Degree. He was sentenced to 364 days in the
Essex County Jail. Sometime following his release from prison, Hohn left the United
States, apparently voluntarily. On August 30, 2001, he returned, arriving at Newark
Airport on a flight from Jamaica. He applied for admission as a returning lawful
permanent resident. In October 2001, the Immigration and Naturalization Service
(“INS”) instituted removal proceedings against him on the ground that he was
inadmissible under INA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1882(a)(2)(A)(i)(II), as an alien
convicted of a controlled substance violation. At the hearing before the Immigration
Judge (“IJ”), Hohn conceded removability, but applied for cancellation of removal under
INA § 240(A)(a), 8 U.S.C. §1229b(a). The IJ denied Hohn’s application, and the BIA
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affirmed without opinion.1
To be eligible for cancellation of removal under § 240(A)(a), the petitioner must
show that he or she: (1) has been an alien lawfully admitted for permanent residence for
at least five years; (2) has resided in the United States continuously for seven years; and
(3) has not been convicted of an aggravated felony. INA § 241(A)(a), 8 U.S.C.
§1229b(a). Failure to satisfy any one of these requirements renders the petitioner
ineligible for relief. The IJ found that Hohn failed to satisfy both the second and third
requirements. First, the IJ determined that Hohn’s 1990 conviction for conspiracy to
transport aliens constituted a conviction for an aggravated felony, which rendered him
ineligible for relief under INA § 240(A)(a)(3). Second, the IJ found that Hohn failed to
prove seven years of continuous physical presence in the country as required by INA §
241(A)(a)(2). Hohn challenges both of these findings.
Under 8 U.S.C. § 1252(a)(2)(C), where no constitutional claim or question of law
has been raised, we lack jurisdiction to review “any final order of removal against an
alien who is removable” because of a controlled substance violation. However, the
REAL ID Act of 2005, Pub. L. 109-13, 119 Stat. 231, restored direct review of
constitutional claims and questions of law presented in petitions for review of final
removal orders. 8 U.S.C. § 1252(a)(2)(D). Hohn does not dispute that he is subject to
1
“[W]here the BIA directs us to the opinion and decision of the IJ who originally
assessed [the] application, we review the IJ’s opinion.” Dia v. Ashcroft, 353 F.3d 228,
240 (3d Cir. 2003) (en banc).
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removal as a controlled substance violator. “Thus, examining each of [Hohn’s] present
claims, we are limited to ‘pure questions of law,’ and to ‘issues of application of law to
fact, where the facts are undisputed and not the subject of challenge.’” Kamara v. AG of
the United States, 420 F.3d 202, 211 (3d Cir. 2005) (quoting Bakhtriger v. Elwood, 360
F.3d 414, 420 (3d Cir. 2004)).
With respect to the IJ’s determination that Hohn failed to prove seven years of
continuous residence, Hohn does not claim a constitutional violation or an error in the
application of the statutory standard. Rather, he argues that the factual record does not
support the IJ’s finding. Specifically, he claims that “the IJ improperly ignored
substantial evidence in the record of the Petitioner’s seven years of continuous residence
after admission in any status.” Appellant’s Br. at 8. This is a factual question, which is
beyond the scope of our jurisdiction under 8 U.S.C. § 1252(a)(2)(C)-(D). See Bakhtriger
v. Elwood, 360 F.3d 414, 425 (3d Cir. 2004) (petitioner’s argument that the factual record
did not support the IJ’s finding was a factual issue which was “squarely on the forbidden
side of the line”).
Because we lack jurisdiction to review the continuous residence claim, the BIA’s
affirmance of the IJ’s decision that Hohn is ineligible for relief because he failed to prove
seven years continuous residence will stand. This finding alone is sufficient to render
Hohn ineligible for cancellation of removal under § 241(A)(a). It is, therefore,
unnecessary for us to address Hohn’s argument that the IJ erred in finding that the 1990
4
conviction was for an aggravated felony, thus precluding him from seeking cancellation.
Accordingly, we decline to do so.
For the foregoing reasons, we will deny Hohn’s petition for review.
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