                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-20-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3517




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"Beaton v. Atty Gen USA" (2006). 2006 Decisions. Paper 1734.
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                                               NOT PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT

                  NOS. 05-3517 and 05-3988
                    ________________

                ROBERT EDWARD BEATON,

                               Petitioner
                                v.

       ATTORNEY GENERAL OF THE UNITED STATES,

                            Respondent
           ____________________________________

              On Petition for Review of an Order
              of the Board of Immigration Appeals
            Immigration Judge Charles M. Honeyman
                    Agency No. A36 709 542
                      on February 18, 2004
         _______________________________________


           Submitted Under Third Circuit LAR 34.1(a)
                       January 20, 2006

BEFORE: BARRY, STAPLETON and GREENBERG, CIRCUIT JUDGES

                   (Filed January 20, 2006)


                  _______________________

                         OPINION
                  _______________________
PER CURIAM

       Robert Edward Beaton is a native and citizen of Guyana. He was convicted of a

controlled substance violation and was deported in June of 1994. He reentered the United

States in February 1995, and on December 7, 1999, he was convicted of illegal entry

subsequent to a conviction for commission of an aggravated felony under 8 U.S.C.

§ 1326(b)(2). The Government issued a new Notice to Appear in March 2000, based on

the December 1999 conviction. On February 21, 2003, an Immigration Judge (IJ) found

Beaton deportable, finding that his conviction for illegal entry after deportation was an

aggravated felony under INA § 101(a)(43)(O) [8 U.S.C. § 1101(a)(43)(O)]. The IJ found

him ineligible for relief, and the Board of Immigration Appeals (BIA) affirmed on

February 18, 2004.

       Before us are two matters that have been consolidated for disposition. The first,

docketed at C.A. No. 05-3517, originated as a motion filed on January 24, 2005, pursuant

to 28 U.S.C. § 2255 in the United States District Court for the Western District of Texas.

Attached to the motion was an order of the Superior Court of the District of Columbia,

dated December 30, 2004, granting Beaton’s motion to vacate a controlled substance

conviction, and the Government’s motion to dismiss the indictment in the case. The

§ 2255 motion argued that because this conviction had been vacated, Beaton’s conviction

for illegal entry subsequent to a conviction for commission of an aggravated felony was

invalid, and that the removal order was also resultantly invalid. The motion asked the



                                             2
Court to vacate or set aside the reentry charge and the removal order, and to release him

from custody. The Court construed the petition as one filed pursuant to 28 U.S.C. § 2241

and transferred the petition to the United States Court of Appeals for the Fifth Circuit

pursuant to the Real ID Act of 2005, § 106(c), Pub. L. No. 109-13, Div. B, 119 Stat. 231

(May 11, 2005). The Fifth Circuit court in turn transferred the petition to our Court, as

the IJ completed proceedings in this case in York, Pennsylvania. See 8 U.S.C.

§ 1252(b)(2) (“The petition for review shall be filed with the court of appeals for the

judicial circuit in which the immigration judge completed the proceedings.”). To the

extent the original § 2255 motion challenged Beaton’s order of removal, we treat it as a

timely-filed petition for review. See Bonhometre v. Gonzales, 414 F.3d 442, 446 (3d Cir.

2005). As explained below, to the extent the § 2255 motion challenged Beaton’s

conviction for illegal entry after deportation, we will transfer the motion back to the

United States District Court for the Western District of Texas pursuant to 28 U.S.C.

§ 1631.

       The second matter, docketed at C.A. No. 05-3988, originated as a petition for a

writ of habeas corpus, filed March 8, 2004, pursuant to 28 U.S.C. § 2241 in the United

States District Court for the Middle District of Pennsylvania. In his petition, Beaton

argued that the Government had retroactively and improperly applied INA § 241(a)(5) [8

U.S.C. § 1252(a)(5)] to reinstate his prior deportation order. The Government filed a

response, noting that Beaton’s prior deportation order had not been reinstated; rather, he



                                              3
had been served with a new Notice to Appear and that the removal order was based on the

charges in that Notice. After giving the parties an opportunity to comment, on August 24,

2005, the Court transferred the § 2241 petition to this Court pursuant to the REAL ID

Act.

       Beaton filed a brief in each matter, raising the same issue: because his “criminal

convictions were all dismissed and vacated including the conviction that resulted from the

deportation order from which the re-entry charge stemmed from,” the removal order

should be dismissed and the reentry charge should be vacated. The Government filed a

motion to consolidate the actions, and a motion for summary affirmance in lieu of a brief,

which was filed in each of the actions. The Government’s motion for summary

affirmance argues that this Court cannot consider the sole issue raised by Beaton, because

the administrative “record contains no evidence that his convictions were dismissed,” and

because Beaton did not raise the issue before the BIA. Beaton filed a response in

opposition to summary affirmance, arguing that the Government has the burden to show

the continued existence of his convictions, and that he could not have raised the issue

before the BIA because the convictions had not yet been dismissed and vacated.

       We agree with the Government that Beaton is required to exhaust his

administrative remedies on the issue of whether his removal order has been rendered

invalid by the vacation of his conviction(s).1 The relevant statute provides that a “court

   1
     Beaton states that his convictions, plural, have been vacated, but the order he attaches
to his brief appears to reference only once conviction.

                                             4
may review a final order of removal only if . . . the alien has exhausted all administrative

remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1). Beaton filed an

appeal to the BIA, thus, he completed his administrative remedies “as of right.”

However, he could have filed (and might still be able to file) a motion to reopen.2

       Although reopening is not a remedy available as of right, we will require

exhaustion here as a prudential matter. Factors to consider in deciding whether to require

exhaustion as a prudential matter include whether “(1) agency expertise makes agency

consideration necessary to generate a proper record and reach a proper decision; (2)

relaxation of the requirement would encourage the deliberate bypass of the administrative

scheme; and (3) administrative review is likely to allow the agency to correct its own

mistakes and to preclude the need for judicial review.” Huang v. Ashcroft, 390 F.3d

1118, 1123 (9 th Cir. 2004) (citations omitted). Here, the record before us is undeveloped

as to the claim Beaton wishes to raise. See also, 8 U.S.C. § 1252(b)(4)(A) (court may

only decide the petition on the administrative record on which the order of removal is

based). Although motions to reopen are generally discouraged, where, as here, there is

new information that goes to the heart of the removal order, requiring a motion to reopen

will allow the agency to review the matter in the first instance. Cf. Marrero v. INS, 900

F.2d 772 (3d Cir. 1993) (requiring alien to file motion to reopen with immigration court



   2
    We recognize that any motion to reopen filed now would be untimely. See 8 C.F.R.
§ 1003.2(c)(2) (motion to reopen must be filed within 90 days). However, the BIA may
exercise its sua sponte discretion to reopen at any time. See 8 C.F.R. § 1003.2(a).

                                              5
before he could challenge in absentia removal order). We therefore decline to reach the

merits of Beaton’s arguments, because he has failed to exhaust administrative remedies.

       As noted above, the § 2255 motion filed in the United States District Court for the

Western District of Texas, eventually transferred and docketed here, appears to be, in

part, a challenge to Beaton’s conviction for illegal entry after deportation. As his

conviction was entered in the Western District of Texas; see A.R. 445-49, we will transfer

the motion back to that Court pursuant to 28 U.S.C. § 1631. We express no opinion as to

the merit of his § 2255 motion.3




   3
    As we have considered petitioner’s briefs, the motion for summary affirmance is
denied as moot.

                                             6
