Daley v. Attorney General

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
1-8-2008
Daley v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3295
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"Daley v. Atty Gen USA" (2008). 2008 Decisions. Paper 1785.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-3295
___________
DEON EARL DALEY,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order
of the Board of Immigration Appeals
Agency No. A37 777 858
Immigration Judge: Robert P. Owens
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 2, 2008
Before: SLOVITER, BARRY and WEIS, Circuit Judges
(Opinion filed: January 8, 2008)
___________
OPINION
___________
PER CURIAM
Deon Earl Daley petitions for review of an order of the Board of Immigration
Appeals (BIA), which dismissed his appeal of an Immigration Judge’s (IJ’s) final
removal order. We will deny the petition.
Daley is a native and citizen of Jamaica. He entered the U.S. at the age of 8, in
1982. He has several convictions, including a conviction in 1999 for criminal possession
of a weapon. In removal proceedings, he applied for cancellation of removal, and argued
that none of his convictions were valid. The Immigration Judge (IJ) determined that he
was potentially eligible for cancellation, but denied relief as a matter of discretion,
finding that Daley’s convictions outweighed the positive factors. On appeal, the Board of
Immigration Appeals (BIA) agreed with the IJ that relief was not warranted in the
exercise of discretion.
We have jurisdiction to review “constitutional claims or questions of law” raised in
this petition for review. INA § 242(a)(2)(D) [8 U.S.C. § 1252(a)(2)(D)]. However,
pursuant to 8 U.S.C. § 1252(a)(2)(B), courts lack jurisdiction to review “any judgment
regarding the granting of relief under section . . . 1229b . . . .” This Court has held that in
reviewing decisions to deny cancellation of removal under § 1229b, the court retains
jurisdiction to review nondiscretionary factors, but lacks jurisdiction to review
discretionary decisions. Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 178 (3d Cir.
2003). As cancellation here was denied purely on a discretionary basis, we cannot review
the decision.
Daley’s brief mentions “due process” and “equal protection,” but it is difficult to
discern what his claims are in this regard. From what we can understand, it appears that
Daley is complaining that he was found to be removable on the basis of convictions that
2
he believes are not valid. We do not reach the merits of his claims, as a final conviction
cannot be challenged in removal proceedings. See Vargas v. Department Of Homeland
Security, 451 F.3d 1105, 1107 (10 th Cir. 2006); Giammario v. Hurney, 311 F.2d 285, 287
(3d Cir. 1962); cf. Drakes v. INS, 330 F.3d 600, 606 (3d Cir.2003) (alien may not
constitutionally challenge state court conviction in § 2241 petition).1
To the extent Daley challenges his continued detention, that challenge would be
properly brought in a habeas petition filed in District Court. Nnadika v. Attorney
General, 484 F.3d 626, 632 (3d Cir. 2007). As Daley does not raise any other legal or
constitutional issue that this court could review, we will deny the petition.
1
For this reason, Daley’s “Motion to Vacate Judgment” is denied. Daley’s “Motion to
reconsider, vacate and modify the disposition Docket Number 99K076686,” is likewise
denied.