Courtney Bailey v. Atty Gen USA

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
10-24-2008
Courtney Bailey v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-2384
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-2384
___________
COURTNEY A. BAILEY,
Petitioner
v.
THE ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order
of the Board of Immigration Appeals
Agency No. A37 460 522
Immigration Judge: Jeffrey L. Romig
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 23, 2008
Before: SLOVITER, AMBRO and STAPLETON, Circuit Judges
Opinion filed: October 24, 2008
___________
OPINION
___________
PER CURIAM
Courtney A. Bailey petitions for review of a final removal order of the Board of
Immigration Appeals (BIA). For the reasons that follow, we will deny the petition.
Bailey, a native and citizen of Jamaica, entered the United States as a lawful
permanent resident at the age of three. He was served with a Notice to Appear in 2007,
charging him with being removable because he had committed a controlled substance
violation, which also constituted an aggravated felony. An Immigration Judge (IJ)
determined that Bailey was removable as charged, found him ineligible for asylum and
withholding of removal, and denied his application for protection under the Convention
Against Torture.
The BIA agreed that Bailey was removable based on his criminal conviction, and
that he had failed to establish eligibility for any relief from removal. The BIA
determined, inter alia, that there was “no support for [Bailey’s] claim that he was denied
constitutional due process by the Immigration Judge,” as he had shown no prejudice, and
held that Bailey’s conviction was clearly final and could not be collaterally attacked in
immigration proceedings. Bailey filed a timely petition for review.
Although Bailey lists six issues in his brief, he essentially raises two claims: first,
that his removal order is unlawful because it is based on a “void” conviction, and that the
IJ violated his right to due process by failing to allow him to present evidence showing
that his conviction was void.1 The Government argues that we lack jurisdiction to
consider the petition for review.
1
Bailey has not raised any issues concerning whether his conviction is an aggravated
felony, nor has he raised issues concerning the denial of relief from removal. We
therefore do not address these issues. Chen v. Ashcroft, 381 F.3d 221, 235 (3d Cir.
2004).
2
Under section 242(a)(2)(C) of the Immigration and Nationality Act (INA) [8
U.S.C. § 1252(a)(2)(C)], we lack jurisdiction to review “any final order of removal
against an alien who is removable by reason of having committed,” inter alia, a controlled
substance violation covered in INA § 212(a)(2). However, the REAL ID Act of 2005
restored direct review of constitutional claims and questions of law presented in petitions
for review of final removal orders. See INA § 242(a)(2)(D) [8 U.S.C. § 1252(a)(2)(D)];
Papageorgiou v. Gonzales, 413 F.3d 356, 358 (3d Cir. 2005). Because Bailey has been
convicted of a controlled substance violation, in our review we may consider only
constitutional issues, pure questions of law, and issues of application of law to
uncontested facts. See Kamara v. Attorney General, 420 F.3d 202, 211 (3d Cir. 2005).
Thus, we have jurisdiction to consider Bailey’s claims that his removal order is
unlawful and that the IJ violated his due process rights. However, we find that these
claims are without merit. Bailey argues that the IJ lacked jurisdiction to enter a removal
order, because his conviction is “void.” The IJ had jurisdiction to determine whether
Bailey was removable, and jurisdiction vested when the Notice to Appear was filed with
the Immigration Court. 8 U.S.C. § 1229a; 8 C.F.R. § 1003.14. The Government had the
burden to establish by clear and convincing evidence that Bailey was removable based on
his conviction. 8 U.S.C. § 1229a(c)(3). That same statute provides that “[a]n official
record of judgment and conviction” constitutes proof of a criminal conviction. Id. The
Government did submit an official record of Bailey’s conviction. See A.R. 196-205.
3
Although Bailey apparently is attempting to attack this conviction through lawsuits in the
federal courts, a conviction is final for immigration purposes when “procedures for a
direct appeal have been exhausted or waived.” Kabongo v. I.N.S., 837 F.2d 753, 758 (6 th
Cir. 1988). Pendency of post-conviction motions or other forms of collateral attack do
not negate the finality of a conviction for immigration purposes. Paredes v. Attorney
General, 528 F.3d 196, 198-99 (3d Cir. 2008). In addition, a conviction cannot be
collaterally attacked in a removal proceeding. Urbina-Mauricio v. I.N.S., 989 F.2d 1085,
1089 (9 th Cir. 1993); cf. Drakes v. I.N.S., 330 F.3d 600 (3d Cir.) (alien may not challenge
constitutionality of conviction underlying removal order in federal habeas proceeding),
cert. denied, 124 S. Ct. 541 (2003). The IJ lacked authority to consider whether Bailey’s
final conviction was “void.”
Further, because Bailey could not challenge the validity of his conviction in
immigration proceedings, he was not prejudiced by any evidence the IJ may have
excluded concerning the validity of the conviction. See Bonhometre v. Gonzales, 414
F.3d 442, 448 (3d Cir. 2005) (alien is entitled to due process in removal proceedings, but
must show substantial prejudice to prevail).
For the reasons stated above, we will deny the petition for review.
4