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


10-24-2008

Courtney Bailey v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2384




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                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 08-2384
                                      ___________

                               COURTNEY A. BAILEY,
                                                Petitioner

                                            v.

              THE ATTORNEY GENERAL OF THE UNITED STATES
                   ____________________________________

                          On Petition for Review of an Order
                          of the Board of Immigration Appeals
                                Agency No. A37 460 522
                         Immigration Judge: Jeffrey L. Romig
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   October 23, 2008

            Before: SLOVITER, AMBRO and STAPLETON, Circuit Judges

                            Opinion filed: October 24, 2008

                                      ___________

                                       OPINION
                                      ___________

PER CURIAM

      Courtney A. Bailey petitions for review of a final removal order of the Board of

Immigration Appeals (BIA). For the reasons that follow, we will deny the petition.

      Bailey, a native and citizen of Jamaica, entered the United States as a lawful
permanent resident at the age of three. He was served with a Notice to Appear in 2007,

charging him with being removable because he had committed a controlled substance

violation, which also constituted an aggravated felony. An Immigration Judge (IJ)

determined that Bailey was removable as charged, found him ineligible for asylum and

withholding of removal, and denied his application for protection under the Convention

Against Torture.

       The BIA agreed that Bailey was removable based on his criminal conviction, and

that he had failed to establish eligibility for any relief from removal. The BIA

determined, inter alia, that there was “no support for [Bailey’s] claim that he was denied

constitutional due process by the Immigration Judge,” as he had shown no prejudice, and

held that Bailey’s conviction was clearly final and could not be collaterally attacked in

immigration proceedings. Bailey filed a timely petition for review.

       Although Bailey lists six issues in his brief, he essentially raises two claims: first,

that his removal order is unlawful because it is based on a “void” conviction, and that the

IJ violated his right to due process by failing to allow him to present evidence showing

that his conviction was void.1 The Government argues that we lack jurisdiction to

consider the petition for review.




   1
     Bailey has not raised any issues concerning whether his conviction is an aggravated
felony, nor has he raised issues concerning the denial of relief from removal. We
therefore do not address these issues. Chen v. Ashcroft, 381 F.3d 221, 235 (3d Cir.
2004).

                                               2
       Under section 242(a)(2)(C) of the Immigration and Nationality Act (INA) [8

U.S.C. § 1252(a)(2)(C)], we lack jurisdiction to review “any final order of removal

against an alien who is removable by reason of having committed,” inter alia, a controlled

substance violation covered in INA § 212(a)(2). However, the REAL ID Act of 2005

restored direct review of constitutional claims and questions of law presented in petitions

for review of final removal orders. See INA § 242(a)(2)(D) [8 U.S.C. § 1252(a)(2)(D)];

Papageorgiou v. Gonzales, 413 F.3d 356, 358 (3d Cir. 2005). Because Bailey has been

convicted of a controlled substance violation, in our review we may consider only

constitutional issues, pure questions of law, and issues of application of law to

uncontested facts. See Kamara v. Attorney General, 420 F.3d 202, 211 (3d Cir. 2005).

       Thus, we have jurisdiction to consider Bailey’s claims that his removal order is

unlawful and that the IJ violated his due process rights. However, we find that these

claims are without merit. Bailey argues that the IJ lacked jurisdiction to enter a removal

order, because his conviction is “void.” The IJ had jurisdiction to determine whether

Bailey was removable, and jurisdiction vested when the Notice to Appear was filed with

the Immigration Court. 8 U.S.C. § 1229a; 8 C.F.R. § 1003.14. The Government had the

burden to establish by clear and convincing evidence that Bailey was removable based on

his conviction. 8 U.S.C. § 1229a(c)(3). That same statute provides that “[a]n official

record of judgment and conviction” constitutes proof of a criminal conviction. Id. The

Government did submit an official record of Bailey’s conviction. See A.R. 196-205.



                                              3
Although Bailey apparently is attempting to attack this conviction through lawsuits in the

federal courts, a conviction is final for immigration purposes when “procedures for a

direct appeal have been exhausted or waived.” Kabongo v. I.N.S., 837 F.2d 753, 758 (6 th

Cir. 1988). Pendency of post-conviction motions or other forms of collateral attack do

not negate the finality of a conviction for immigration purposes. Paredes v. Attorney

General, 528 F.3d 196, 198-99 (3d Cir. 2008). In addition, a conviction cannot be

collaterally attacked in a removal proceeding. Urbina-Mauricio v. I.N.S., 989 F.2d 1085,

1089 (9 th Cir. 1993); cf. Drakes v. I.N.S., 330 F.3d 600 (3d Cir.) (alien may not challenge

constitutionality of conviction underlying removal order in federal habeas proceeding),

cert. denied, 124 S. Ct. 541 (2003). The IJ lacked authority to consider whether Bailey’s

final conviction was “void.”

       Further, because Bailey could not challenge the validity of his conviction in

immigration proceedings, he was not prejudiced by any evidence the IJ may have

excluded concerning the validity of the conviction. See Bonhometre v. Gonzales, 414

F.3d 442, 448 (3d Cir. 2005) (alien is entitled to due process in removal proceedings, but

must show substantial prejudice to prevail).

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




                                               4
