                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-25-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4135




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                                                                   NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                        No. 06-4135
                                        ___________

                               DEON PATRICK DRAKES,
                                                  Petitioner

                                              v.

                  ATTORNEY GENERAL OF THE UNITED STATES
                             ________________

                        On Petition for Review of an Order of the
                             Board of Immigration Appeals
                               (Agency No. A41-929-596)
                      Immigration Judge: Honorable Grace A. Sease
                       ____________________________________
                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  FEBRUARY 12, 2008

        Before: SLOVITER, BARRY AND GREENBERG, CIRCUIT JUDGES.

                             (Opinion filed February 25, 2008)
                                       ___________

                                         OPINION
                                        ___________

PER CURIAM

       Deon Patrick Drakes petitions for review of a decision by the Board of

Immigration Appeals (“BIA”) denying his appeal. The government has filed a motion to

dismiss the petition for lack of jurisdiction. We will grant the government’s motion and

will dismiss in part for lack of jurisdiction, and will otherwise deny the petition.
       Drakes, a native and citizen of Guyana, entered the United States in 1988 as a legal

permanent resident. In 2004, Drakes pleaded guilty to attempted criminal possession of a

controlled substance in the third degree with intent to sell. The government instituted

removal proceedings against him for being convicted of a controlled substance offense in

violation of INA § 237(a)(2)(B)(i) and of an aggravated felony in violation of INA §

237(a)(2)(A)(iii). At a hearing before an Immigration Judge (“IJ”), Drakes conceded that

he was not a citizen of the U.S., that he was admitted as a legal permanent resident, and

that he was convicted of attempted criminal possession of crack cocaine with intent to

sell, in violation of New York State Penal Law 220.16(01). (See A.R. 44, 84.) He

challenged his removal by contending that his conviction for an attempt offense could not

constitute an aggravated felony. The IJ disagreed and found that the conviction qualified

as an aggravated felony, that he was removable as charged, and that, because of the

aggravated felony, he did not qualify for cancellation of removal under INA § 240A.

       Drakes filed an appeal, but a single member of the Board of Immigration Appeals

(“BIA”) summarily affirmed the IJ’s decision on March 16, 2006. Drakes filed a petition

for review and a motion to stay his removal in the Court of Appeals for the Second

Circuit. The removal proceedings transpired in Pennsylvania, so the Second Circuit

consolidated it with another petition Drakes had filed 1 and transferred them to this Court.



   1
    Drakes also filed a petition for writ of habeas corpus in the District Court for the
Southern District of New York in the fall of 2005, while his removal proceedings were
pending before the immigration court. It was transferred to the Court of Appeals for the

                                              2
See INA § 242(b)(2). The government filed a motion to dismiss the petition for lack of

jurisdiction because Drakes has been convicted of an aggravated felony.2

       Although the government is correct that we lack jurisdiction to review an order of

removal based on an aggravated felony, we nonetheless have jurisdiction to consider

“constitutional claims or questions of law” in a petition for review. See INA §

242(a)(2)(D). Here, Drakes presents several legal arguments: that his conviction does not

qualify as an aggravated felony, that his counsel provided ineffective assistance, and that

he is eligible for cancellation of removal. We have jurisdiction to determine the legal

question of whether Drakes’ conviction qualifies as an aggravated felony. See Tran v.

Gonzales, 414 F.3d 464, 467 (3d Cir. 2005). We examine the question of whether an

offense qualifies as an aggravated felony de novo. See Valansi v. Ashcroft, 278 F.3d

203, 207 (3d Cir. 2002). If Drakes’ conviction qualifies, then he is ineligible for

cancellation of removal. See INA § 240A(a)(3).




Second Circuit as a petition for review in February 2006, and then consolidated and
transferred to this Court. The government filed a motion to dismiss that portion of the
petition for review, and we granted the motion insofar as it dismissed that part. See
Drakes v. Attorney General of the United States, C.A. No. 4135 (order entered on August
17, 2007). The Second Circuit also transferred Drakes’ motion to stay removal, which we
denied on December 7, 2006.
   2
      The government also moved to dismiss Drakes’ petition for review because it was
not timely filed. In its brief, the government stated that it “will no longer contest
jurisdiction in this case” with respect to whether Drakes’ petition was timely filed. (See
Resp.’s Br. at 3.) We are still obligated to confirm that the petition was timely for our
own jurisdiction. On this record, we are satisfied that the petition was timely filed.

                                             3
       We agree with the BIA that Drakes’ conviction qualifies as an aggravated felony.

A state drug conviction may be found to qualify as an aggravated felony under either of

two routes. Wilson v. Ashcroft, 350 F.3d 377, 381 (3d Cir. 2003). Under the “illicit

trafficking in any controlled substance” approach, the offense constitutes an aggravated

felony if it requires “trafficking” and the state deems its commission to be a felony. Id.

Under the “hypothetical federal felony” approach, an offense is an aggravated felony

when “regardless of categorization [by the state], [it] would be punishable as a felony

under an analogous federal statute.” Id.

       We need not address the first approach because Drakes’ conviction qualifies as a

“hypothetical federal felony.” Using the “hypothetical federal felony” analysis, the court

examines whether a state drug conviction would have been punishable as a felony under

the Controlled Substances Act (“CSA”). See Lopez v. Gonzales, – U.S. –, –, 127 S. Ct.

625, 633 (2006); Gerbier v. Holmes, 280 F.3d 297, 313-15 (3d Cir. 2002). At hearings

before the IJ, Drakes admitted the government’s charge that he was convicted of

“Attempted Criminal Possession of a Controlled Substance in the Third Degree with

Intent to Sell, to wit: Crack Cocaine; in violation of Section 110/220.16 (01) of the New

York State Penal Law,” a Class C felony under N.Y. Penal Law § 110.05(4). (See A.R.

28, 44, 84.) 3 The analogous federal offense punishable under the CSA would be



   3
      The state’s “Certificate of Disposition Indictment” submitted to DHS reflects that
Drakes was convicted of “Attempted Criminal Possession of a Controlled Substance in
the 3rd Degree, PL 110-220.16 01 CF (Dangerous Drug).” (See A.R. 77.)

                                             4
attempted possession of a controlled substance with intent to distribute, 21 U.S.C.

§§ 841(a), 846, a felony. See Lopez, 127 S. Ct. at 630 n.4, 631 n.7; 21 U.S.C. §

841(b)(1)(C). The CSA proscribes “any person [to] knowingly or intentionally . . .

possess with intent to manufacture, distribute, or dispense, a controlled substance.” 21

U.S.C. § 841(a)(1). The CSA also provides that attempted offenses under section 841 are

subject to “the same penalties as those prescribed by the offense, the commission of

which was the object of the attempt or conspiracy.” 21 U.S.C. § 846. According to the

“hypothetical federal felony” analysis, the conviction qualifies as an aggravated felony,

and Drakes is therefore ineligible for cancellation of removal. See INA § 240A(a)(3).

       Finally, we address the claim that Drakes’ attorney rendered ineffective assistance

in his representation of Drakes on the state criminal claims. As the BIA noted, Drakes

raised only a bare-bones claim, and failed to articulate exactly how counsel failed to

adequately represent him. See, e.g., Matter of Lozada, 19 I&N Dec. 637 (BIA 1988).

Moreover, as the BIA pointed out, the claim essentially attacks Drakes’ underlying

criminal conviction, and immigration courts lack the authority to “go behind” the criminal

judgment to re-assess guilt or innocence.

       For these reasons, we agree with the government that we lack jurisdiction over any

claims barred from review under INA § 242(a)(2)(C). See 8 U.S.C. § 1252(a)(2)(C);

Valansi, 278 F.3d at 207. We grant the government’s motion to dismiss and will dismiss

the petition for review in part. To the extent that the petition for review raises any legal



                                              5
questions over which we retain jurisdiction, the petition will be denied. The

government’s remaining motion to dismiss on timeliness grounds is denied.




                                             6
