Smith v. Attorney General of the United States

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
3-30-2006
Smith v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-4339
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 04-4339
________________
VIRGIL EDWARD SMITH,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES*,
Respondent
_______________________________________
On Petition for Review of a Decision of the
Board of Immigration Appeals
(Agency No. A34 308 874)
Immigration Judge: Honorable Walter A. Durling
_______________________________________
Submitted Under Third Circuit L.A.R. 34.1(a)
March 3, 2006
BEFORE: MCKEE, FUENTES AND NYGAARD, CIRCUIT JUDGES
(Filed: March 30, 2006)
_______________________
OPINION
_______________________
PER CURIAM
Virgil Edward Smith petitions for review of a final order of removal issued by the
Board of Immigration Appeals (BIA). The government moves to dismiss Smith’s petition
*
Caption amended pursuant to Rule 43(c), Fed. R. App. P.
for review for lack of jurisdiction. For the following reasons, we conclude that we have
jurisdiction in this matter and will deny the petition for review.
Smith, a native of Trinidad and Tobago, was admitted to the United States in 1973
as a lawful permanent resident. In 1994, Smith pleaded guilty in New York to criminal
possession of a weapon in the third degree, and was sentenced to three to six years in
prison. In 1997, Smith pleaded guilty in New York to criminal sale of a controlled
substance (crack cocaine) in the fifth degree, and was sentenced to two to four years.
Based on these convictions, the government charged Smith in May 2004 with
removability for having been convicted of an aggravated felony, a controlled substance
offense, and a firearm offense. The IJ found Smith removable as charged and ineligible
to apply for a waiver of removal under former § 212(c) of the Immigration and
Nationality Act (INA). On appeal, the BIA concluded that Smith’s 1997 conviction for
selling crack cocaine constitutes an aggravated felony and that he is ineligible to apply for
§ 212(c) relief.
In November 2004, Smith challenged the BIA’s order by filing a timely petition
for review in this Court. In February 2005, after Smith filed his opening brief, the
government moved to dismiss the petition for review for lack of jurisdiction on the
ground that Smith is removable for having committed certain criminal offenses. When
the government filed its motion to dismiss, we lacked jurisdiction to review a final order
of removal against an alien who is removable for having been convicted of criminal
offenses, including an aggravated felony, a controlled substance offense, and certain
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firearm offenses. See 8 U.S.C. § 1252(a)(2)(C); Douglas v. Ashcroft, 374 F.3d 230, 235
(3d Cir. 2004). Effective May 11, 2005, the REAL ID Act restored our jurisdiction to
review “constitutional claims and questions of law raised upon a petition for review” filed
by an alien who is removable for having been convicted of criminal offenses. 8 U.S.C.
§ 1252(a)(2)(D); see Papageorgiou v. Gonzales, 413 F.3d 356, 358 (3d Cir. 2005). Under
the REAL ID Act, we have jurisdiction to review the questions of law raised in Smith’s
petition for review. Accordingly, we deny the government’s motion to dismiss.
We will also deny Smith’s petition for review on the merits. Without question,
Smith’s 1997 conviction for criminal sale of crack cocaine constitutes a controlled
substance offense under § 1227(a)(2)(B)(i). Additionally, his 1994 conviction for
criminal possession of a weapon readily constitutes a qualifying firearm offense under
§ 1227(a)(2)(C). For having been convicted of these offenses, Smith is removable.
The question remains, however, whether the BIA correctly ruled that Smith is not
eligible to apply for a waiver of removal under former § 212(c) of the INA. Prior to the
enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) on
April 24, 1996, the Attorney General had discretion to waive deportation of lawful
permanent residents such as Smith. Section 440(d) of the AEDPA amended § 212(c) to
prohibit waivers to lawful permanent residents convicted of aggravated felonies. See
Perez v. Elwood, 294 F.3d 552, 556-57 (3d Cir. 2002). The Illegal Immigration Reform
and Immigrant Responsibility Act (IIRIRA) then took effect on April 1, 1997, which
repealed § 212(c) altogether and replaced it with cancellation of removal under § 240A.
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Id. at 557. Even so, an alien who pleaded guilty prior to April 1, 1997, and who was
eligible for § 212(c) relief at the time he pleaded guilty, remains eligible to apply for
§ 212(c) relief, notwithstanding his disqualifying conviction. See INS v. St. Cyr, 533
U.S. 289, 326 (2001); 8 C.F.R. § 1212.3(h)(2).
The question in Smith’s case, then, is whether he was eligible to apply for § 212(c)
relief when he pleaded guilty on March 25, 1997, just a few days before § 212(c) was
repealed. The answer to this question turns on whether Smith’s 1997 conviction
constitutes an aggravated felony. If so, he never was eligible to apply for a § 212(c)
waiver – § 440(d) of the AEDPA expressly prohibited it as of April 24, 1996.
We agree with the BIA that Smith’s conviction for criminal sale of crack cocaine
constitutes an aggravated felony. The INA defines an aggravated felony (for relevant
purposes) as “illicit trafficking in a controlled substance (as defined in section 802 of
Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18).” 8
U.S.C. § 1101(a)(43)(B). A state drug conviction constitutes an aggravated felony under
the “illicit trafficking route” if the conviction is a felony under state law and encompasses
a trafficking element. Gerbier v. Holmes, 280 F.3d 297, 305-06 & 307 n.7 (3d Cir. 2002).
The trafficking element is present if the offense involves “the unlawful trading or dealing
of a controlled substance.” Id. at 305. Absent a trafficking element, a state drug
conviction is nonetheless an aggravated felony as a “drug trafficking crime” if it
constitutes a “hypothetical federal felony.” Gerbier, 280 F.3d at 315. Under the
hypothetical federal felony approach, we determine whether the state drug conviction
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would be punishable as a felony under an analogous federal statute. Id.The BIA determined that Smith’s conviction does not constitute “illicit trafficking
in a controlled substance” but that it is a “drug trafficking crime” under the hypothetical
federal felony approach. As the BIA explained, under New York law, “selling” includes
any form of transfer, even a gratuitous transfer, of a controlled substance from one person
to another. See People v. Starling, 650 N.E.2d 387, 390 (N.Y. 1995). The BIA reasoned
that because “selling” under New York law does not necessarily include a trafficking
element, Smith’s conviction is not an illicit trafficking offense.
Whether the BIA’s decision on this issue is correct presents an interesting
question, but one we need not resolve in the current matter. After ruling that Smith’s
conviction does not constitute illicit trafficking, the BIA properly considered whether his
conviction is a drug trafficking crime under the hypothetical federal felony approach.
Here, the BIA correctly identified the analogous federal felony as distribution of a
controlled substance under 21 U.S.C. § 841(a)(1). See Wilson v. Ashcroft, 350 F.3d 377,
381 (3d Cir. 2003). Under this approach, Smith’s 1997 conviction constitutes a drug
trafficking crime and thus an aggravated felony under § 1101(a)(43)(B). It follows that
Smith was not eligible to apply for a § 212(c) waiver at the time he pleaded guilty to an
aggravated felony.
Finally, Smith asserts that he is a national of the United States because he served in
the military. The BIA correctly rejected this contention. A national is either a citizen of
the United States, or “a person who, though not a citizen of the United States, owes
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permanent allegiance to the United States.” 8 U.S.C. § 1101(a)(22). For a citizen of
another country, “nothing less than citizenship will show ‘permanent allegiance to the
United States.’” Salim v. Ashcroft, 350 F.3d 307, 310 (3d Cir. 2003). Smith’s prior
military service, without more, does not render him a citizen or national of the United
States. See Marquez-Almanzar v. INS, 418 F.3d 210, 216-18 (2d Cir. 2005).
For these reasons, we will deny Smith’s petition for review.
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