                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-12-2007

USA v. Hylton
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2611




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 06-2611


                           UNITED STATES OF AMERICA

                                           v.

                           FRANK COURTNEY HYLTON,
                                    a/k/a
                                FRANK BROWN

                                   Frank Courtney Hylton,
                                                 Appellant


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF NEW JERSEY
                           (D.C. Crim. No. 05-cr-00366)
                  District Judge: The Honorable Jose L. Linares


                      Submitted Under Third Circuit LAR 34.1(a)
                                 November 30, 2007


       Before: BARRY, FUENTES, Circuit Judges, and DIAMOND,* District Judge

                         (Opinion Filed: December 12, 2007)


                                       OPINION



   *
    The Honorable Paul S. Diamond, United States District Judge for the Eastern District
of Pennsylvania, sitting by designation.
BARRY, Circuit Judge

       Appellant Frank Hylton appeals the District Court’s order denying his motion to

dismiss the indictment charging him with illegal reentry of a removed alien under 8

U.S.C. § 1326(a) and (b)(2). Because Hylton’s claims are foreclosed by our decision in

United States v. Torres, 383 F.3d 92 (3d Cir. 2004), we will affirm.

                                            I.

       Hylton, a citizen of Jamaica, entered the United States as a permanent resident in

1987 at the age of sixteen. On April 11, 1994, he pleaded guilty in the Superior Court of

New Jersey to a felony count of possession of cocaine, and was sentenced to three years

probation (the “Bergen County Conviction”). On January 31, 1996, he was convicted of

several felony counts in New Jersey, including one count of possession with intent to

distribute marijuana within one thousand feet of a school, and was sentenced to five years

in prison with a three-year parole ineligibility (the “Essex County Conviction”). During

his incarceration, the Immigration and Naturalization Service (“INS”) commenced

removal proceedings against him.1 On June 3, 1999, an Immigration Judge (“IJ”) ordered

him removed on two independent grounds: (1) commission of an aggravated felony,

based on the Essex County Conviction; and (2) commission of a controlled substance




   1
    The INS issued an Order to Show Cause (“OSC”) on July 31, 1996 and served the
OSC on Hylton on September 5, 1996. However, the INS did not file the OSC at that
time and did not file any charging document until January 20, 1999, when it filed a Notice
to Appear (“NTA”) with the Immigration Court.

                                            2
offense, based on both the Essex County Conviction and the Bergen County Conviction.

After an untimely appeal to the Board of Immigration Appeals, two motions to reopen,

and an unsuccessful habeas petition, Hylton was removed on December 18, 2000.

       At some point after he was removed, Hylton returned to the United States and, on

November 21, 2002, was arrested by police in Orange, New Jersey. On May 11, 2005, a

federal grand jury returned an indictment charging him with illegal reentry under 8 U.S.C.

§ 1326(a) and (b)(2) and alleging that he had been removed after committing an

aggravated felony.2 Hylton moved to dismiss the indictment by collaterally attacking the

underlying removal order and arguing, among other things, that his removal proceedings

were fundamentally unfair. On October 6, 2005, the District Court denied the motion.

       On December 22, 2005, the government filed a superceding information, charging

Hylton with illegal reentry under 8 U.S.C. § 1326(a) and (b)(1) and alleging that he had

been removed after committing “two separate felony offenses.” (A144.) On that same

date, following a short bench trial, Hylton was convicted. He filed a timely notice of

appeal of the District Court’s denial of his motion to dismiss.3

       On appeal, Hylton collaterally attacks the underlying removal order by contending


   2
    The delay between the arrest and the indictment appears to have been the result of
Hylton giving police an alias when he was apprehended. Eventually, police were able to
determine Hylton’s actual identity through fingerprint analysis. (PSR ¶¶ 10-11.)
   3
    Although Hylton failed to file his notice of appeal within 10 days after entry of
judgment as required under Fed. R. App. P. 4(b)(1)(A), he obtained from the District
Court an extension of time within which to file his notice of appeal pursuant to Fed. R.
App. P. 4(b)(4) and filed that notice within the time allotted by the District Court.

                                             3
that the IJ committed two legal errors during the removal proceedings that rendered those

proceedings fundamentally unfair. He argues that the IJ erred in finding (1) that the

Essex County Conviction was an aggravated felony, and (2) that removal proceedings

commenced against him in 1999 (when the NTA was filed) rather than in 1996 (when the

OSC was issued). As a result of these errors, according to Hylton, the IJ wrongly

considered him ineligible for discretionary relief from removal under § 212(c). He claims

that these errors of law, “in their totality” (Appellant’s Br. 59.), rendered his removal

proceedings fundamentally unfair.4

                                              II

       We have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s

denial of Hylton’s motion to dismiss de novo. Torres, 383 F.3d at 95.

                                             III

       In Torres, we held that, for purposes of illegal reentry proceedings in which the

defendant seeks to collaterally attack the underlying removal order, there is “no

fundamental unfairness in [an IJ] failing to consider an alien for 212(c) relief,” even when

such failure is based on the IJ’s erroneous interpretation of law. Torres, 383 F.3d at 104-

06. We reasoned that fundamental unfairness in that context was a question of due

process, and “[w]ithout more, an error of law will ordinarily not rise to the level of a due



   4
    Hylton actually identifies three alleged legal errors. However, the third such error,
“the fact that [Hylton] was erroneously considered ineligible for § 212(c) relief,” is
merely the result of the other two alleged errors. (See Appellant’s Br. 59.)

                                              4
process violation.” Id. at 104. Moreover, because “removal proceedings are civil in

nature[,] ...the procedural protections accorded to [aliens] in that context measure less

than the panoply available to a criminal defendant.” Id. at 103 (citations omitted).

Instead, “in the removal context, ‘due process requires that an alien who faces [removal]

be provided (1) notice of the charges against him, (2) a hearing before an executive or

administrative tribunal, and (3) a fair opportunity to be heard.’” Id. at 104 (alteration in

original) (citation omitted). Finally, we held that no alien could have a due process

interest in potential § 212(c) relief because such relief was “a matter of grace rather than

of right.” Id. at 104-05 (“Even if Torres had presented a most sympathetic and

compelling case for granting section 212(c) relief, nothing would have required the IJ to

actually grant that relief.”).

       Hylton’s appeal falls squarely under Torres. He attempts, however, to distinguish

Torres by alleging that the IJ committed multiple legal errors that, “in their totality,”

rendered his removal proceedings fundamentally unfair. Regardless of the number of

alleged legal errors, the result of those errors – the IJ’s failure to consider him for §

212(c) relief – presents the same situation as was presented in Torres. Although Hylton

argues that the IJ’s legal errors “went to the ‘question of procedure’ and the opportunity

to be heard ‘in a meaningful manner’” (Appellant’s Br. 60), the only harm he can point to

is the failure to be considered for § 212(c) relief, which under Torres is insufficient to




                                               5
render his proceedings fundamentally unfair.5

       Hylton received “(1) notice of the charges against him, (2) a hearing before an

executive or administrative tribunal, and (3) a fair opportunity to be heard.” Torres, 383

F.3d at 104. Accordingly, the requirements of due process were met and his removal

proceedings were not fundamentally unfair.6

                                            IV

       For the foregoing reasons, we will affirm the order of the District Court.




   5
     Hylton makes vague reference to additional harmful consequences of the IJ’s alleged
errors, such as being “effectively permanently barred from ever returning to the United
States,” being “subject to enhanced criminal penalties should he ever return to the United
States without authorization,” being “barred from seeking voluntary departure” and being
“subject to mandatory detention, without bond if he returns to the United States.”
(Appellant’s Br. 51-52.) However, these substantive consequences of the IJ’s alleged
legal errors do not render the removal proceedings procedurally defective. Hylton also
suggests that he was wrongly denied direct judicial review, thus rendering his removal
proceedings fundamentally unfair. (Appellant’s Br. 48.) Under 8 U.S.C. § 1326(d),
however, a defendant collaterally attacking the underlying removal order must show both
that the defendant was denied a meaningful opportunity for judicial review and that the
removal order was fundamentally unfair. Therefore, even if Hylton could show that he
was denied meaningful judicial review, that would not be enough. See Torres, 383 F.3d
at 102-03 (appellant “cannot establish that his removal order was ‘fundamentally unfair’
as required by section 1326(d)(3)...[even] assum[ing], arguendo, that [he] was denied a
meaningful opportunity for judicial review”).
   6
     Because we hold that Hylton’s claims are foreclosed by Torres, it is unnecessary for
us to reach his contention that the IJ’s rulings were, in fact, erroneous.

                                              6
