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


6-15-2007

Stewart v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2854




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                                                               NOT PRECEDENTIAL


                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                  _______________

                                    No. 05-2854
                                  _______________

                              RAYMOND STEWART,

                                               Petitioner

                                          v.

                  ATTORNEY GENERAL of the UNITED STATES,

                                               Respondent

                                  _______________

                           On Review of a Decision of the
                            Board of Immigration Appeals
                             (Agency No. A73-074-867)
                         Immigration Judge: Grace A. Sease
                  Transferred pursuant to the REAL ID Act from the
                         United States District Court for the
                           Eastern District of Pennsylvania
                              (Docket No. 04-cv-00761)

                      Submitted under Third Circuit LAR 34.1(a)
                               Tuesday, May 22, 2007

           Before: BARRY, CHAGARES, and TASHIMA,* Circuit Judges.

                                 (Filed June 15, 2007)



      *
        Honorable A. Wallace Tashima, United States Court of Appeals for the Ninth
Circuit, sitting by designation.
                               OPINION OF THE COURT
                                 __________________

CHAGARES, Circuit Judge.

       This is a petition for review of a final order of removal issued by the Board of

Immigration Appeals (“BIA”). The parties agree that we should vacate and remand the

BIA’s final order. In this opinion, we address the appropriate scope of the remand.

                                             I.

       Petitioner Raymond Stewart is a native and citizen of Jamaica. He has lived in the

United States since 1993, and since 1996 he has been a lawful permanent resident. In

December 1998, Philadelphia police arrested Stewart on drug charges. Stewart pleaded

guilty to violations of 35 Pa. Stat. Ann. § 780-113(a)(30) (“[M]anufacture, delivery, or

possession with intent to manufacture or deliver, a controlled substance”), and 35 Pa.

Stat. Ann. § 780-113(a)(16) (“possessing a controlled . . . substance”). The Philadelphia

Municipal Court sentenced Stewart to 18 months of probation.

       In April 2000, immigration authorities commenced removal proceedings against

Stewart. The Notice to Appear alleged that Stewart was removable based on his

commission of the “aggravated felony” of “illicit trafficking in a controlled substance,” 8

U.S.C. §§ 1101(a)(43)(b), 1227(a)(2)(A)(iii), and based on his violation of a “law . . .

relating to a controlled substance,” § 1227(a)(2)(B)(i). At a hearing before an

Immigration Judge (“IJ”) in June 2003, Stewart’s counsel admitted that Stewart’s

conviction under 35 Pa. Stat. Ann. § 780-113(a)(30) constituted an aggravated felony.


                                             2
However, counsel informed the IJ that Stewart was attempting to appeal his Pennsylvania

conviction nunc pro tunc. Unfortunately, counsel failed to provide any documentation of

that fact, and the IJ refused to consider the possibility of a nunc pro tunc appeal. The IJ

then ordered Stewart removed to Jamaica based on his aggravated felony conviction.

       Through counsel, Stewart filed a Notice of Appeal to the BIA. The only issue

raised was Stewart’s pending motion to file a nunc pro tunc appeal. Counsel predicted

that “on June 22, 2003 Judge Bashoff [of the Philadelphia Municipal Court] will grant the

appeal nunc pro tunc thereby granting [Stewart] a new trial . . . .” Appendix (“App.”)

39.1

       Question 8 on the Notice of Appeal form asks: “Do you intend to file a separate

written brief or statement after filing this Notice of Appeal?” App. 39. Directly below

that question, the form states:

       WARNING: If you mark “Yes” in item #8, you will be expected to file a

       written brief or statement after you receive a briefing schedule from the

       Board. The Board may summarily dismiss your appeal if you do not file a

       brief or statement within the time set in the briefing schedule.

Id. Stewart’s counsel marked “Yes” in answer to Question 8, but he failed to file a brief.

As a result, in October 2003 the BIA summarily dismissed the appeal pursuant to 8 C.F.R.


       1
        As it happened, counsel’s prediction was incorrect. Stewart’s current attorney
informs us that Stewart’s efforts to pursue a nunc pro tunc appeal “have, as of yet, been
unsuccessful.” Stewart Brief 14. Stewart, however, continues to pursue a nunc pro tunc
appeal in Philadelphia Municipal Court. Id.

                                              3
§ 1003.1(d)(2)(i)(E).2

       After the BIA’s order, Stewart remained in the custody of the Department of

Homeland Security. In January 2004, Stewart wrote a letter, pro se, to the Clerk of the

Executive Office of Immigration Review. Stewart asserted that the BIA’s decision was

erroneous. Stewart’s attorney had given Stewart a copy of the Notice of Appeal, and on

that copy the answer to Question 8 was left blank. Stewart also stated that his attorney

“did not show up for a court hearing . . . at the criminal court in Pennsylvania,” and that

he had been unsuccessfully attempting to contact his attorney for four months. App. 46.

Stewart asked the BIA to consider whether his “attorney’s conduct is sufficient for

finding ineffective assistance of counsel,” and to “allow [him] a chance to find another

attorney.” App. 47.

       An Appeals Examiner responded to Stewart’s letter in February 2004. She

explained that Stewart’s case was “no longer before the Board,” and as a result she stated

that “your letter . . . is returned to you herewith.” App. 61. The Appeals Examiner said

that motions to reopen must comply with the provisions of 8 C.F.R. §§ 1003.2 and



       2
        Section 1003.1(d)(2)(i)(E) states:

       A single Board member or panel may summarily dismiss any appeal or
       portion of any appeal in any case in which: . . . .

       (E) The party concerned indicates on [the Notice of Appeal] form that he or
       she will file a brief or statement in support of the appeal and, thereafter,
       does not file such brief or statement, or reasonably explain his or her failure
       to do so, within the time set for filing[.]

                                              4
1003.8, and must include a “$110 fee or fee waiver request.” Id. She also stated that “the

regulations governing motions . . . include strict time limits.” Id. As a result, the Appeals

Examiner encouraged Stewart to “consult promptly with an attorney.” Id.

       Stewart never received this letter. Although he remained in the custody of the

Department of Homeland Security, the letter was returned as undeliverable.

       On February 17, 2004, Stewart filed a pro se petition for a writ of habeas corpus in

the District Court. After Congress passed the REAL ID Act, the District Court converted

the matter to a petition for review and transferred it to this Court. See Silva-Rengifo v.

Attorney General, 473 F.3d 58, 62 (3d Cir. 2007). Because the agency determined that

Stewart was removable by reason of an aggravated felony conviction, our jurisdiction

extends only to “constitutional claims or questions of law.” See 8 U.S.C. §§

1252(a)(2)(C), (D); Silva-Rengifo, 473 F.3d at 63.

                                            II.

       Stewart’s primary argument is that he is entitled to a hearing on an application for

Cancellation of Removal because his conviction under 35 Pa. Stat. Ann. § 780-113(a)(30)

is not an aggravated felony.3 Stewart, however, did not raise this claim before the IJ or

the BIA. His failure to exhaust his administrative remedies forecloses our review of this

claim. See 8 U.S.C. § 1252(d)(1); Joseph v. Attorney General, 465 F.3d 123, 126 (3d Cir.


       3
        Our cases establish a detailed set of rules for determining whether a violation of
35 Pa. Stat. Ann. § 780-113(a)(30) qualifies as an aggravated felony. See Jeune v.
Attorney General, 476 F.3d 199 (3d Cir. 2007); Garcia v. Attorney General, 462 F.3d 287
(3d Cir. 2006).

                                              5
2006).

                                              III.

         Stewart also argues that his January 2004 letter constituted a motion to reopen,

which the BIA should have addressed on the merits. However, as the Appeals Examiner

stated, Stewart’s letter did not comply with the procedural requirements of 8 C.F.R. §§

1003.2 and 1003.8. It is not error for the BIA to insist on compliance with the regulations

governing motions to reopen. See Nocon v. INS, 789 F.2d 1028, 1033 (3d Cir. 1986)

(stating that “[b]ecause the petitioners were not in compliance with the prescribed

regulations, the Board was justified in denying the motion” to reconsider); see also

Sinistaj v. Ashcroft, 376 F.3d 516, 519-20 (6th Cir. 2004). Although, as Stewart points

out, pro se motions should be liberally construed, the BIA is entitled to insist on at least

minimal compliance with the governing regulations. Accordingly, there was no legal

error in the BIA’s refusal to treat Stewart’s letter as a motion to reopen.

                                              IV.

         Finally, Stewart contends the BIA erred when it dismissed his appeal for failure to

file a brief. The applicable regulation states that the BIA “may summarily dismiss an

appeal” when “[t]he party concerned indicates . . . that he or she will file a brief,” but fails

to do so. 8 C.F.R. § 1003.1(d)(2)(i)(E) (emphasis added). Stewart argues that his Notice

of Appeal form does not “indicate[]” any intent to file a brief. See id. He points out that

the mark in the “Yes” box for Question 8 appears to have been made with a pen, while

the four other check marks on the Notice of Appeal form appear to have been generated

                                               6
by a computer program. Thus, according to Stewart, the mark in the “Yes” box for

Question 8 was probably an inadvertent smudge, and the BIA’s contrary conclusion was

an error of law.

       Although the Attorney General views Stewart’s inadvertent-smudge theory “with

dubiety,” he has “agree[d] to a remand of the matter to the BIA for the limited purpose of

addressing the claims set forth in the [Notice of Appeal form] on the merits.” Attorney

General Brief 17. In light of this agreement, we will remand the case to the BIA for that

limited purpose.

                                         V.

       Based on the foregoing, we will vacate the final order of removal and remand to

the BIA for consideration of whether Stewart has perfected a nunc pro tunc appeal of his

Pennsylvania convictions. The BIA is under no obligation to consider Stewart’s other

arguments.




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