IMG-140                                                         NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 09-2014
                                       ___________

                            MICHAEL JULIUS BUMBURY,
                                                  Petitioner
                                       v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                                        Respondent
                    ____________________________________

                       On Petition for Review of an Order of the
                            Board of Immigration Appeals
                             (Agency No. A036-478-631)
                     Immigration Judge: Honorable Henry S. Dogin
                      ____________________________________

                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    March 24, 2010

         Before: FUENTES, ROTH AND VAN ANTWERPEN, Circuit Judges

                               (Opinion filed: April 2, 2010)
                                       _________

                                         OPINION
                                        _________

PER CURIAM

       Michael Bumbury petitions for review of the Board of Immigration Appeals’

(“BIA”) decision affirming an immigration judge’s (IJ’s) final order of removal. For the

reasons that follow, we will deny the petition.
                                              I.

       Michael Bumbury is a 35-year-old citizen of Guyana and a lawful permanent

resident of the United States. He was admitted to this country in 1981 at the age of six.

In 1990, at the age of fifteen, Bumbury was tried and convicted as an adult in the state of

New York for first-degree sodomy. Bumbury was released in 1996, but he was

incarcerated months later for a parole violation. In 2000, after a second conviction for

sodomy that was later vacated, Bumbury was served with a Notice to Appear charging

him with being removable as an aggravated felon for committing a “crime of violence”

and for the commission of two crimes involving moral turpitude. See 8 U.S.C. §§

1227(a)(2)(A)(ii); (a)(2)(A)(iii).

       At his hearing before the IJ in 2000, Bumbury, appearing pro se, admitted the

existence of his first conviction, but declined to consider the later conviction because it

was under a direct appeal. Finding Bumbury removable as an aggravated felon for the

1990 sodomy conviction but not removable for the conviction of two crimes involving

moral turpitude, the IJ then addressed Bumbury’s application for a waiver of removal

under former INA § 212(c). Because Bumbury had served more than five years

incarceration for his conviction, the IJ found that Bumbury was ineligible for § 212(c)

relief. Bumbury filed an appeal, which was dismissed by the BIA as untimely.




                                              2
       In 2001, Bumbury was transferred from the New York correctional system to an

immigration detention center, where he remained until he posted bond in 2006.1 In

November 2007, the proceedings were reopened, and the IJ held a hearing on the merits

of Bumbury’s application for a § 212(c) waiver. The IJ denied Bumbury’s application for

a waiver under § 212(c) as a matter of discretion. The IJ further stated that even if his

discretionary denial of relief was not sustained, Bumbury might still be ineligible for a

waiver, based on the BIA’s holding in Matter of Brieva, 23 I. & N. Dec. 766 (BIA 2005);

the IJ requested that the BIA review Bumbury’s eligibility in light of that BIA decision.

On appeal, the BIA, relying on Matter of Brieva and Caroleo v. Gonzales, 476 F.3d 158,

167-68 (3d Cir. 2007), held that Bumbury was statutorily ineligible for a § 212(c) waiver

because his conviction for a “crime of violence” lacked a “statutory counterpart” ground




for exclusion in INA § 212(a). Bumbury timely petitioned this Court to review the BIA’s



       1
        During the course of the five years that Bumbury spent in immigration custody, he
made numerous pro se attempts to reopen his proceedings, based on the Supreme Court’s
decision in INS v. St. Cyr, 533 U.S. 289 (2001). In response to one motion, he was
instructed by the New Jersey immigration court to file in New York, only to later have the
New York immigration court instruct him that jurisdiction lay in New Jersey. In March
2005, the BIA denied his motion to reopen, holding that Bumbury was not eligible for a §
212(c) waiver due to his second conviction in 2000. Bumbury then petitioned for a writ
of habeas corpus with the United States District Court, proving that his 2000 conviction
had been vacated in November 2001. The District Court transferred the petition to the
Second Circuit, which remanded the matter to the BIA in light of the vacatur of his 2000
conviction and the BIA’s reliance on the 2000 conviction in its decision. The BIA then
remanded the matter to the IJ. Following this remand, in October 2005, upon motion of
the government, the venue was changed from New York to New Jersey.

                                              3
decision.2

                                             II.

       Bumbury challenges the legal basis for the BIA’s denial of his application for §

212(c) relief, and he asserts that the categorical approach to determining the statutory

counterpart requirement violates his rights to due process and equal protection. Because

Bumbury’s petition raises a question of law, as well a constitutional claims, we have

jurisdiction to review his petition under 8 U.S.C. § 1252(a)(2)(D). See Papageorgiou v.

Gonzales, 413 F.3d 356, 358 (3d Cir. 2006). Where, as here, the BIA issued a separate

decision and did not adopt any portion of the IJ’s decision, we review only the BIA’s

decision. See Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006) (citations

omitted).3 The BIA’s legal conclusions are reviewed de novo. See Smriko v. Ashcroft,

387 F.3d 279, 282 (3d Cir. 2004).

                                            III.

       In order for Bumbury to establish eligibility for relief under § 212(c), he must

demonstrate that the basis for his removal has a “statutory counterpart” ground for

exclusion in § 212(a) of the Immigration and Nationality Act. Caroleo, 476 F.3d at 168.

Bumbury argues that his 1990 conviction for sodomy is a crime of moral turpitude, which


       2
       Bumbury does not dispute that he is removable for having committed a “crime of
violence.”
       3
     Because the BIA did not expressly adopt or defer to the IJ’s finding denying
Bumbury § 212(c) relief as a matter of discretion, that issue is not before us. See
Kayembe v. Ashcroft, 334 F.3d 231, 234-35 (3d Cir. 2003).

                                             4
is listed in § 212(a). While Bumbury’s crime could be characterized as a crime involving

moral turpitude (and, as Bumbury points out, was also charged as such in the

government’s Notice to Appear), we conduct the statutory counterpart analysis by looking

at the ground used to make an alien removable. Id. (“[o]nce the government has

categorized [an] offense as a ‘crime of violence’ in removal proceedings, and that

categorization has been upheld, our § 212(c) inquiry focuses on whether this statutory

ground for removal is substantially equivalent to any of the statutory grounds for

exclusion contained in INA § 212(a)”). Bumbury was found removable for having

committed a crime of violence, and a “crime of violence” does not have a statutory

counterpart in § 212(a). Id.; see also Gonzales-Mesias v. Mukasey, 529 F.3d 62, 64 (1st

Cir. 2008) (holding that there was no comparable statutory ground of inadmissibility in a

case in which the aggravated felony “crime of violence” was predicated on a conviction

for sodomy). Thus, the BIA did not err in concluding that Bumbury is not eligible for §

212(c) relief.

       Bumbury contends that allowing the government to categorize his sodomy

conviction as a crime of moral turpitude for purposes of establishing a ground for

deportability under § 237(a)(2)(A)(iii), yet denying him the opportunity to categorize the

same conviction as a crime of moral turpitude for purposes of § 212(c) relief, is

fundamentally unfair and a violation of his due process and equal protection rights. In

Caroleo, we considered the equal protection implications of this approach and rejected the



                                             5
same due process and equal protection challenges that Bumbury raises. Caroleo, 476

F.3d at 164-65. While recognizing “the seeming illogic” of such a distinction, we held

that an aggravated felony “crime of violence” is not a statutory counterpart of a “crime

involving moral turpitude,” and it is irrelevant whether the aggravated felony may have

subjected him to removal as an alien convicted of a crime of moral turpitude under INA §

237(a)(2)(A)(I). Id. at 168. Accordingly, Bumbury is not entitled to relief on this ground.

       For the above reasons, we will deny the petition for review.




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