Douglas v. Atty Gen USA

Opinions of the United

2004 Decisions States Court of Appeals

for the Third Circuit

7-8-2004

Douglas v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 04-1906

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PRECEDENTIAL SLOVITER, Circuit Judge.

UNITED STATES COURT OF

The motion by the petitioner

APPEALS FOR THE THIRD CIRCUIT

Hensworth Douglas for a stay of removal

was routed to a motion panel of this court

in accordance with our procedure.

Douglas sought the stay of removal

No. 04-1906

pending our final decision on his petition

for review of the Board of Immigration

Appeals’ (“BIA”) order denying his

application for cancellation of removal

HENSWORTH DOUGLAS,

under 8 U.S.C. § 1229b(a) and ordering

his removal to Jamaica. Respondent, the

Petitioner

Attorney General, has filed a motion to

dismiss Douglas’ petition for lack of

v.

subject matter jurisdiction. The central

question before us on the merits is whether

JOHN ASHCROFT, ATTORNEY

we may review a final order of the BIA

GENERAL OF THE UNITED STATES

based on two alternative legal grounds

OF AMERICA,

when we are without jurisdiction to review

the order based on one of those grounds.

Respondent

This appeal also gives us the opportunity

to set forth for the first time in a

precedential opinion the standard that we

Petition for Review of an Order

follow in ruling on a motion for a stay of

of the Board of Immigration Appeals

removal pending a decision on the Petition

(A40-387-915)

for Review.

Sur Motion Submitted Under Third

Background

Circuit LAR 34.1(a) May 19, 2004

Before: SLOVITER, McKEE, and

Douglas entered the United States

BECKER, Circuit Judges

with a valid visa in 1987. He received

lawful permanent resident status sometime

(Filed: July 8, 2004 )

thereafter. Douglas was convicted under

Delaware law in October 2002 for

trafficking of cocaine. In June 2003, the

Department of H omeland S ecurity

(“DHS”) issued a Notice to Appear

OPINION OF THE COURT

charging Douglas with being subject to

removal from the United States, pursuant The IJ, in an oral decision dated

to 8 U.S.C. § 1227 (a)(2)(A)(iii) and November 20, 2003, found that Douglas’

(a)(2)(B)(i), as an alien convicted of an “sexual misconduct” conviction under

“aggravated felony” as well as of certain New York state law did not constitute an

controlled substance offenses. Douglas “aggravated felony” under the Immigration

admitted to the Delaware conviction and Naturalization Act (“INA”). Having

during a hearing before an Immigration determined that the Section 130.20 of the

Judge (“IJ”), who found Douglas to be an New York Penal Code is a divisible statute

alien subject to removal under § that covers both aggravated felony and

1227(a)(2)(B)(i). The IJ, however, ruled non-aggravated felony offenses as defined

that § 1227(a)(2)(A)(iii) is inapplicable to by 8 U.S.C. § 1101(a)(43)(A), the IJ ruled

Douglas on the ground that the underlying that the DHS failed to establish through

Delaware drug conviction did not evidence that Douglas’ conviction under

constitute an “aggravated felony” based on Section 130.20 was pursuant to a portion

our decision in Gerbier v. Holmes, 280 of the section that qualifies as an

F.3d 297 (3d Cir. 2002). IJ’s Op. at 1-2. “aggravated felony.” IJ’s Op. at 9-11.

Neither Douglas nor the DHS challenged The IJ also rejected the DHS’s contention

these findings before the BIA or before us that Douglas’ “sexual misconduct”

here. conviction qualifies as a crime of moral

turpitude. IJ’s Op. at 10-11. Having thus

The DHS subsequently amended

the Notice to Appear, charging Douglas

with being subject to removal, again

pursuant to § 1227(a)(2)(A)(iii), as an sexual intercourse with

alien convicted of the “aggravated felony” another person without

of “murder, rape, or sexual abuse of a such person’s consent; or

minor” under 8 U.S.C. § 1101(a)(43)(A). 2. He or she engages in

This charge was based on Douglas’ 1992 deviate sexual intercourse

conviction under New York State Penal with another person

Law Sec tion 130 .20 for “sexual without such person’s

misconduct,” a misdemeanor under New consent; or

York state law.1 3. He or she engages in

sexual conduct with an

animal or a dead human

1

New York State Penal Law body.

Section 130.20, at the time of Douglas’

conviction, states: Sexual misconduct is a class A

A person is guilty of sexual misdemeanor.

misconduct when:

N.Y. Penal Law § 130.20 (McKinney

1. He or she engages in 1992).

2

determined that Douglas has not DHS, which reflected that Douglas

committed an “aggravated felony,” the IJ engaged in “nonconsensual sexual

ruled that Douglas was eligible to apply intercourse with a 14-year-old female”

for cancellation of removal under 8 U.S.C. victim. BIA’s Op. at 2. It found that

§ 1229b(a).2 The IJ then granted the because this description of Douglas’

application for cancellation of removal offense fulfilled the necessary elements for

after she balanced the hardship to Douglas “sexual abuse of a minor” under 8 U.S.C.

and his family members against his § 1101(a)(43)(A), as defined by the BIA’s

criminal history. decision in Matter of Rodriguez-

Rodriguez, 22 I. & N. Dec. 991 (BIA

On appeal, the BIA vacated the IJ’s

1999), Douglas’ conviction falls within the

decision regarding the “aggravated felony”

portion of New York Penal Law Section

charge and ordered Douglas’ removal from

130.20 that qualified as an “aggravated

the United States. The BIA ruled that

felony” under the INA, which rendered

Douglas’ 1992 “sexual misconduct”

Douglas ineligible for cancellation of

conviction qualified as an “aggravated

removal under 8 U.S.C. § 1229b(a).3 The

felony” based on the charging instrument

BIA therefore ruled that Douglas’

from that conviction, as submitted by the

“applications for relief from removal are

pretermitted and [Douglas] is ordered

2 removed to Jamaica.” BIA’s Op. at 3.

8 U.S.C. § 1229b(a) states:

(a) Cancellation of removal Douglas filed his petition for

for certain permanent review on April 2, 2004, challenging only

residents. the BIA’s ruling with respect to the

The Attorney General may “aggravated felony” issue. He thereafter

cancel removal in the case filed an emergency motion on May 4, 2004

of an alien who is to stay his removal pending our review of

inadmissible or deportable his petition. The Attorney General

from the United States if responded with a motion to dismiss

the alien – Douglas’ petition based on our lack of

(1) has been an alien j u r is d i c ti o n u n d e r 8 U .S.C . §

lawfully admitted for

permanent residence for

3

not less than 5 years, The BIA also found that Douglas’

(2) has resided in the 2002 Delaware controlled substance

United States continuously conviction “render[ed] him ineligible for

for 7 years after having a waiver under former section 212(c) of

been admitted in any status, the [INA], 8 U.S.C. § 1182(c), despite

and INS v. St. Cyr, 533 U.S. 289 (2001) . . .

(3) has not been convicted .” Douglas raises no issue with respect

of any aggravated felony. to that portion of the BIA’s decision.

3

1252(a)(2)(C), 4 to review the BIA’s order preliminary injunction in examining

of removal against Douglas due to the IJ’s requests for a stay of removal. Under the

finding that Douglas’ Delaware drug preliminary injunction s tand ard, a

offense conviction qualified as a petitioner requesting a stay of removal

controlled substance offense under 8 must demonstrate (1) a likelihood of

U.S.C. § 1227(a)(2)(B)(i). We granted success on the merits of the underlying

Douglas’ motion to stay removal so that petition; (2) that irreparable harm would

we would have an opportunity to consider occur if a stay is not granted; (3) that the

the legal issue with respect to our potential harm to the moving party

jurisdiction, but we will now dismiss outweighs the harm to the opposing party

Douglas’ petition for review for lack of if a stay is not granted; and (4) that the

subject matter jurisdiction. granting of the stay would serve the public

interest. Arevalo v. Ashcroft, 344 F.3d 1,

7-8 (1st Cir. 2003); Mohammed v. Reno,

Discussion 309 F.3d 95, 100 (2d Cir. 2002); Bejjani v.

INS, 271 F.3d 670, 688-89 (6th Cir. 2001).

The Ninth Circuit applies a two-pronged

A. Douglas’ Motion for Stay of standard of review that provides that a stay

Removal of removal should be granted when an

alien shows “either (1) a probability of

As we noted above, we have not

success on the merits and the possibility of

previously addressed the standard of

irreparable injury, or (2) that serious legal

review for assessing a motion to stay

questions are raised and the balance of

removal of an alien pending judicial

hardships tips sharply in the petitioner’s

review. Most courts of appeals, however,

favor.” Andreiu v. Ashcroft, 253 F.3d 477,

have applied the standard for granting a

483 (9th Cir. 2001) (en banc) (quoting

Abbassi v. INS, 143 F.3d 513, 514 (9th

4 Cir. 1998)). This standard collapses the

8 U.S.C. § 1252(a)(2)(C) states:

traditional four-prong test. For the sake of

Notwithstanding any other

providing both linguistic and analytic

provision of law, no court

clarity, we adhere to the traditional four-

shall have jurisdiction to

part framework for the preliminary

review any final order of

injunction standard.

removal against an alien

who is removable by The Court of Appeals for the

reason of having Eleventh Circuit, however, applies a more

committed a criminal stringent standard that requires petitioners

offense covered in section to produce “clear and convincing

1182(a)(2) or evidence” that the execution of the

1227(a)(2)(A)(iii), (B), (C), removal order is prohibited by law. Weng

or (D) of this title . . . .

4

v. United States Att’y Gen., 287 F.3d Circuit that the “clear and convincing

1335, 1337 (11th Cir. 2002). That court evidence” standard is inapplicable to

based its holding on the language of 8 motions to stay removal pending judicial

U.S.C. § 1252(f)(2), which prohibits courts review of the underlying petition. See

from enjoining the removal of any alien Andreiu, 253 F.3d at 480-83. As 8 U.S.C.

pursuant to a final order “unless the alien § 1252(b)(3)(B), which in effect requires

shows by clear and convincing evidence petitioners subject to a removal order to

that the entry or execution of such order is affirmatively seek a stay of removal from

prohibited as a matter of law.” Weng, 287 the reviewing court, provides no standard

F.3d at 1338. But see Bonhomme-Ardouin for reviewing such motions to stay

v. United States Att’y Gen., 291 F.3d removal, we will apply the traditional

1289, 1290-91 (11th Cir. 2002) (Barkett, standard for reviewing a motion to stay an

J., joined by Wilson, J., concurring) administrative agency order pending

(stating that “Weng applied the wrong judicial review of the underlying petition

standard for a motion for temporary stay of or appeal – the preliminary injunction

deportation pending appeal” and urging standard.5

the court to reconsider the issue en banc).

See generally Kenyeres v. Ashcroft, 538

U.S. 1301, 1303-05 (2003) (discussing B. Douglas’ Petition for Review and

differing standards applied by various the Attorney General’s Motion to

Courts of Appeals but declining to decide Dismiss for Lack of Jurisdiction

the issue).

We now join the First, Second, and

In the usual case, we would turn to

Sixth Circuits in holding that the proper

application of the four-part test for a stay

standard of review for motions to stay

removal is the traditional four-part test

used for adjudicating motions for

5

preliminary injunction, as we set forth We realize that the threshold for

above. The opinions in Mohammed, 309 meeting the “likelihood of success on the

F.3d at 99-100, and in Arevalo, 344 F.3d merits” requirement is somewhat vague

at 7-9, both set forth clear multi-level and open to various interpretations.

analyses of why 8 U.S.C. § 1252(f)(2) Were we to reach the issue in this case, it

applies only to permanent prohibitions of would be relevant that the IJ and the BIA

removal and not to motions to stay the differed in their rulings with respect to

execution of a removal order, and we are Douglas’ 1992 sexual misconduct

persuaded by the reasoning in those conviction as an aggravated felony, and

opinions to reject the Eleventh Circuit’s this court had not previously reviewed

“clear and convincing evidence” this issue. In view of our decision on

requirement. We also agree with the Ninth jurisdiction, this is not the appropriate

case to analyze that issue.

5

of removal discussed above, starting with under 8 U.S.C. § 1252(a)(2)(C), we have

Douglas’ likelihood of success on his no jurisdiction to review Douglas’ petition

petition for review of the BIA’s ruling on for review because of Douglas’ controlled

the aggravated felony issue. Here, substance conviction, even though

however, we must first address the Douglas’ petition challenges only the

Attorney General’s motion to dismiss BIA’s determination that the 1992 “sexual

Douglas’ petition due to lack of subject misconduct” conviction qualifies as an

matter jurisdiction because each court “aggravated felony” under the INA.

must first satisfy itself of its own However, we have jurisdiction pursuant to

jurisdiction. United States v. Touby, 909 8 U.S.C. § 1252(a)(1) and (b) “to

F.2d 759, 763 (3d Cir. 1990). determine our jurisdiction under [8 U.S.C.]

§ 1252(a)(2)(C).” Drakes v. Zimski, 240

The BIA vacated only the portion of

F.3d 246, 247 (3d Cir. 2001).

the IJ’s decision holding that Douglas’

1992 New York sexual misconduct We have previously noted the

conviction was not an “aggravated felony” jurisdictional question of reviewing one of

and that Douglas was therefore eligible for two alternative reasons supporting a final

cancellation of removal; the BIA did not order of removal when the other reason,

review the IJ’s decision regarding which is not challenged by the petitioning

Douglas’ 2002 Delaware controlled party, deprives us of jurisdiction to review

substance conviction, which also rendered the same order of removal. In Nugent v.

Douglas subject to removal under the INA. Ashcroft, 367 F.3d 162 (3d Cir. 2004), we

Douglas, in fact, did not challenge before framed the question in the following

the BIA or here the IJ’s finding that he is manner: “If we do not have jurisdiction to

removable from the United States on the review the order based on one of the

ground of his Delaware drug conviction. reasons . . . what authority do we have to

Undoubtedly, Douglas follows that course review another reason supporting the order

because he would be qualified to seek the . . . ?” Id. at 166-67. We did not have to

discretionary relief of cancellation of address that question in Nugent, however,

removal if he is found removable only on because the petitioner in that case had also

the controlled substance conviction but not filed a petition for a writ of habeas corpus

if he has a prior conviction that qualifies as under 28 U.S.C. § 2241 challenging the

an “aggravated felony.” 8 U.S.C. § BIA’s ruling on the same grounds as that

1229b(a). The scope of our review, in his original petition for review in a

therefore, includes both the BIA’s decision petition. The subsequent consolidation of

and the portion of the IJ’s decision that the original petition for review and the

was left unchallenged in front of the BIA. habeas corpus petition allowed us to

See Xie v. Ashcroft, 359 F.3d 239, 242 (3d address the merit of Nugent’s argument in

Cir. 2004). our review of the habeas corpus petition.

Because Douglas has not filed a habeas

The Attorney General contends that

6

corpus petition addressing the same We therefore hold that we have no

argument he has presented in his petition jurisdiction to review the BIA’s order of

for review here, the jurisdictional removal under 8 U.S.C. § 1252(a)(2)(C)

argument is now properly before us.

Section 1252(a)(2)(C) provides that

no court has jurisdiction to review “any the same jurisdictional issue. It also

final order of removal” against an alien concluded that it had no jurisdiction to

who is found removable for having review an alien’s petition to review a

committed a criminal offense covered by, final order of removal based on the

among others, 8 U.S.C. § 1227(a)(2)(B). alien’s uncontested controlled substance

T h e pla i n lang uage of se ctio n convictions, reasoning:

1252(a)(2)(C) deprives us of jurisdiction to Although the order of

review a final removal “order” from the removal cites two bases for

BIA rather than the ground on which the removal – i.e., Flores’s

removal order was based. This is 1991 and 1996 marijuana

consistent with the INA’s overall structure convictions and Flores’s

of allowing for “[j]udicial review of a final 1972 burglary conviction –

order of removal,” 8 U.S.C. § 1252(a)(1), there is only one “order” to

rather than particular reasons supporting be reviewed. Once we

such order. See also § 1252(b), (d), (g). determine that the order of

Indeed, if we reject the BI A’s removal before us is based

determination that Douglas’ 1992 independently on Flores’s

conviction of sexual misconduct qualifies controlled substance

as an “aggravated felony,” the BIA’s final offenses covered by 8

order of removal remains intact based on U.S.C. § 1227(a)(2)(B), the

Douglas’ 2002 drug conviction; the BIA’s jurisdiction-stripping

order of removal stand s on th e provisions of § 1252

independent basis of the other reason clearly apply, and it does

which is not subject to judicial review not matter for the purposes

under the INA. Therefore Douglas, having of determining the scope of

conceded his removability from the United our jurisdiction under §

States based on the 2002 conviction, does 1252(a)(2)(C) that the

not actually petition us to review a “final order of removal is also

order of removal” which is, based on his based on an aggravated

concession, not subject to judicial review.6 felony conviction that

Flores argues is not

actually covered by 8

6

In Flores-Garza v. INS, 328 F.3d U.S.C. § 1227(a)(2)(A)(iii).

797, 802 (5th Cir. 2003), the Court of

Appeals in the Fifth Circuit confronted Id. (emphasis in original).

7

based on his 2002 Delaware controlled

substance conviction, and we will grant the

Attorney General’s motion to dismiss. We

emphasize, however, that our decision

does not foreclose Douglas of the

opportunity to seek judicial review of the

substantive arguments contained in his

petition for review through a petition for

habeas corpus filed in an appropriate

district court pursuant to 28 U.S.C. § 2241.

See Nugent, 367 F.3d at 166-67. In light

of our decision, we will vacate the stay of

removal that we entered as an expediency

so that we could consider the jurisdictional

issue raised by the Attorney General.

Conclusion

For the foregoing reason, we will

grant the Attorney General’s motion to

dismiss for lack of jurisdiction and dismiss

Douglas’ petition for review.

8