Kporlor v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-4389
___________
LEELA KPORLOR,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A028-195-610)
Immigration Judge: Honorable Margaret R. Reichenberg
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 12, 2013
Before: SCIRICA, JORDAN and GREENAWAY, JR., Circuit Judges
(Opinion filed: June 28, 2013)
___________
OPINION
___________
PER CURIAM
Leela Kporlor petitions for review of his final order of removal. We will deny the
petition.
I.
Kporlor is a citizen of Liberia who entered the United States in 1993 as a refugee
and later became a lawful permanent resident. In 1996, he was convicted in New Jersey
state court of theft by deception in violation of N.J. Stat. Ann. § 2C:20-4. In 1998, he
pleaded guilty to possession with the intent to distribute cocaine in violation of N.J. Stat.
Ann. § 2C:35-5(a)(1) and (b)(2) and was sentenced to five years in prison. The
Government later charged him as removable for, inter alia, having been convicted of two
crimes involving moral turpitude, see 8 U.S.C. § 1227(a)(2)(A)(ii), and an illicit drug
trafficking aggravated felony, see 8 U.S.C. §§ 1101(a)(43)(B), 1227(a)(2)(A)(iii).
Kporlor was represented by counsel before the Immigration Judge (“IJ”). He
claimed to fear removal to Liberia because members of a former regime who are still in
power under a different regime threatened to kill him in 1990 when he refused to join
their rebellion against then-president Samuel Doe. The IJ sustained the charges
referenced above and determined that the aggravated felony constitutes a “particularly
serious crime” rendering Kporlor ineligible for asylum, see 8 U.S.C. § 1158(b)(2)(A)(ii)
& (b)(2)(B)(i), and withholding of removal (given his five-year sentence), see 8 U.S.C. §
1231(b)(3)(B)(ii) & (b)(3)(B) (last paragraph). The IJ also denied Kporlor’s claim for
deferral of removal under the Convention Against Torture (“CAT”). The IJ found him
credible and did not fault him for lack of corroboration, but she concluded that his claim
that he faces torture in Liberia is speculative because the Liberian civil war ended in 2003
2
and Kporlor presented no evidence that anyone would target him.
Kporlor appealed to the Board of Immigration Appeals (“BIA”) pro se. He also
submitted additional evidence with his brief and filed a separate motion to remand to the
IJ for consideration of a waiver of inadmissibility under INA § 212(h), 8 U.S.C. §
1182(h). The BIA found no basis to disturb the IJ’s conclusions and dismissed Kporlor’s
appeal. It also denied his requests to remand for consideration of the additional evidence
and a § 212(h) application. Kporlor petitions for review pro se.1
II.
Kporlor raises essentially four arguments on review, but they lack merit. First,
Kporlor argues that a collateral challenge to his 1998 cocaine conviction remains pending
and that the IJ erred in denying a continuance to await its result. Kporlor did not request
such a continuance before the IJ, however, and did not raise this issue before the BIA.
Thus, even assuming that this argument presents a due process claim that we would
otherwise have jurisdiction to review, it is unexhausted and we lack jurisdiction to
consider it for that reason. See 8 U.S.C. § 1252(d)(1); Hoxha v. Holder, 559 F.3d 157,
1
We have jurisdiction under 8 U.S.C. § 1252(a)(1) to review final orders of removal.
Because Kporlor has been convicted of an aggravated felony as discussed below, our
jurisdiction extends only to constitutional claims and questions of law. See 8 U.S.C. §
1252(a)(2)(C), (D); Kaplun v. Att’y Gen., 602 F.3d 260, 265 (3d Cir. 2010). We review
such claims de novo subject to established principles of deference. See id. Our review is
of the BIA’s decision, though we may look to that of the IJ as well to the extent that the
BIA affirmed the IJ’s conclusions. See Sandie v. Att’y Gen., 562 F.3d 246, 250 (3d Cir.
2009). Kporlor has not challenged the BIA’s denial of a remand for consideration of a §
212(h) waiver, and thus has waived the issue, but the BIA properly explained why
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163 n.5 (3d Cir. 2009). We nevertheless note that the IJ continued Kporlor’s proceeding
seven times over a period of seven months and that his conviction remains final for
immigration purposes notwithstanding his apparently pending collateral challenge. See
Paredes v. Att’y Gen., 528 F.3d 196, 198-99 (3d Cir. 2008).
Second, Kporlor argues that the BIA erred in concluding that his 1998 cocaine
conviction constitutes an aggravated felony. In particular, he argues that his statute of
conviction is divisible and that the BIA erred by failing to apply the modified categorical
approach in concluding that his conviction constitutes a hypothetical federal felony. The
BIA did apply that approach, however, and his conviction clearly qualifies.
Kporlor pleaded guilty to possession with the intent to distribute controlled
substances in violation of N.J. Stat. Ann. § 2C:35-5(a)(1) and (b)(2). That statute
“proscribes the identical conduct” as 21 U.S.C. § 841(a)(1). Wilson v. Ashcroft, 350
F.3d 377, 381 (3d Cir. 2003). A conviction under the New Jersey statute is not
categorically an aggravated felony, but only because the statute covers possession with
the intent to distribute marijuana, and distribution of a “small amount” of marijuana for
no remuneration is only a federal misdemeanor. See 21 U.S.C. § 841(b)(4); Wilson, 350
F.3d at 381. Thus, the BIA properly applied the modified categorical approach to
determine whether Kporlor was convicted under that part of the statute. See Evanson v.
Att’y Gen., 550 F.3d 284, 290-91 (3d Cir. 2008).
Kporlor is ineligible for such a waiver in any event.
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He was not. The modified categorical approach permits consideration of the
criminal judgment and charging instrument (among other things), see id. at 290, and
those documents reveal that Kporlor pleaded guilty to Count One of the indictment,
which charged him with possessing with the intent to distribute between one-half of an
ounce and five ounces of cocaine. (A.R. 666-67.) Federal law contains no misdemeanor
provision for distributing a “small amount” of cocaine and instead makes possession with
the intent to distribute cocaine punishable by up to twenty years in prison, see 18 U.S.C.
§ 841(b)(1)(C), so Kporlor’s conviction constitutes an aggravated felony under the
hypothetical federal felony approach. As explained by the IJ and BIA, that conviction
leaves him with deferral of removal under CAT as the only potentially available relief.2
Third, Kporlor challenges the IJ’s denial of his CAT claim on the merits. As the
Government notes, Kporlor’s conviction of an aggravated felony deprives us of
jurisdiction to review his factual arguments in this regard. (The Government argues in
the alternative that the Agency’s findings are supported by substantial evidence, and we
might well agree if we had jurisdiction to reach that issue.) As for challenges properly
2
After briefing was complete, Kporlor filed a Rule 28(j) letter raising Moncrieffe v.
Holder, 133 S. Ct. 1678 (2013). That decision holds that a conviction under a statute that
encompasses distribution of a small amount of marijuana for no remuneration does not
categorically constitute an aggravated felony. See id. at 1686-87. We had already so
held in Wilson and Evanson, and Moncrieffe otherwise has no bearing on the treatment
of Kporlor’s conviction, which involved cocaine. Kporlor also argues that we should
apply the “rule of lenity,” but that rule is inapplicable because nothing in this case turns
on a grievously ambiguous statute. See Patel v. Ashcroft, 294 F.3d 465, 473 n.9 (3d Cir.
2002), superseded by statute on other grounds as recognized in Kamara v. Att’y Gen.,
5
characterized as legal, Kporlor argues that the BIA applied the wrong standard of review
by engaging in de novo factfinding regarding the likelihood of torture. See Kaplun, 602
F.3d at 271. It was the IJ who concluded that Kporlor did not show a likelihood of facing
treatment amounting to torture in Liberia, however, and the BIA expressly cited Kaplun
and properly reviewed that finding for clear error. Kporlor also challenges the IJ’s
discussion of whether the Liberian government would be willfully blind to torture or
whether the torture would be committed with specific intent, but he has raised no legal or
constitutional basis to disturb the Agency’s finding that he has not shown a likelihood of
being tortured in the first place.
Finally, Kporlor argues that the BIA abused its discretion in denying his request to
reopen or remand for presentation of his additional evidence, including a video from
1990. The actual video is not contained in the record, but Kporlor represents that it
“shows that the [sic] Prince Johnson, a current member of the Liberian government,
giving orders to his rebel underlings to murder Samuel Doe, the then president of
Liberia.” (Pet’r’s Br. at 17.) The BIA declined to remand for consideration of this
evidence because it was available before Kporlor’s hearing and he provided no
explanation for not having presented it then. See 8 C.F.R. § 1003.2(c)(1).
Kporlor provides such an explanation for the first time on review (i.e., that he was
incarcerated and only learned of the video while waiting for the IJ to issue her written
420 F.3d 202, 209 (3d Cir. 2005).
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decision), but he did not exhaust that issue before the BIA. In addition, although we
ordinarily review the BIA’s denial of remand or reopening for abuse of discretion, see
Pllumi v. Att’y Gen., 642 F.3d 155, 158 (3d Cir. 2011), we lack jurisdiction to do so in
this case because Kporlor is an aggravated felon and has raised no colorable legal or
constitutional claims in this regard. We further note that none of Kporlor’s new evidence
undermines the basis for the IJ’s decision because none if it relates to conditions in
Liberia following the end of the civil war in 2003.
For these reasons, we will deny Kporlor’s petition for review. Kporlor’s requests
for oral argument and a stay of removal are denied as well.
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