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


1-19-2006

de Leon Morillo v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3150




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"de Leon Morillo v. Atty Gen USA" (2006). 2006 Decisions. Paper 1738.
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                                                    NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT

                                   NO. 05-3150
                                ________________

                          CESAR DE LEON MORILLO,

                                     Petitioner

                                         V.

              ATTORNEY GENERAL OF THE UNITED STATES,

                                Respondent
                   ____________________________________

                   On Petition for Review of a Decision of the
                         Board of Immigration Appeals
                       Immigration Judge Grace A. Sease
                           (Agency No. A90 275 698)
                 _______________________________________


                    Submitted Under Third Circuit LAR 34.1(a)
                                January 12, 2006

       Before: MCKEE, FUENTES AND NYGAARD, CIRCUIT JUDGES


                             (Filed: January 19, 2006)


                           _______________________

                                   OPINION
                           _______________________
PER CURIAM

    Cesar De Leon Morillo petitions for review of a final order of removal of the
Board of Immigration Appeals (“BIA”). For the reasons that follow, we will deny the

petition for review.

       De Leon Morillo is a native and citizen of the Dominican Republic. He entered

the United States in 1985 without inspection, and became a lawful permanent resident in

1992. De Leon Morillo pled guilty in New York state court to two charges of the

criminal sale of a controlled substance in the third degree (cocaine), a class B felony. In

2002, he received a concurrent sentence of two to six years in prison.

       The Immigration and Naturalization Service charged De Leon Morillo with being

subject to removal from the United States as an alien convicted of an aggravated felony,

as defined in Section 101(a)(43)(B) of the Immigration and Nationality Act, and a

violation of a law or regulation relating to a controlled substance. In April 2004, after a

hearing, the Immigration Judge found De Leon Morillo removable as charged, and

ordered his removal to the Dominican Republic. De Leon Morillo did not seek relief

from removal. In August 2004, the BIA affirmed, without opinion, the result of the

Immigration Judge’s decision, making it the final agency determination under the

immigration regulations. 8 C.F.R. § 1003.1(e)(4).

       In September 2004, De Leon Morillo filed a petition for a writ of habeas corpus in

the United States District Court for the Eastern District of Pennsylvania, claiming that the

Government failed to meets its burden of proving that he is removable. The District

Court stayed De Leon Morillo’s removal, and transferred his habeas petition to this Court

to be treated as a petition for review pursuant to the Real ID Act, Pub. Law No. 109-13.

                                              2
       We have jurisdiction pursuant to Section 106(c) of the Real ID Act. Although the

Government argues that we lack jurisdiction due to De Leon Morillo’s criminal

convictions, our jurisdiction extends to questions of law raised upon a petition for review,

including petitions for review of removal orders based on aggravated felony convictions.

Tran v. Gonzales, 414 F.3d 464, 467 (3d Cir. 2005).

       De Leon Morillo argues that the Government did not satisfy its burden under 8

U.S.C. § 1229a(c)(3)(A) of proving he is removable based upon a criminal conviction.

He contends the Government failed to introduce at the hearing before the Immigration

Judge the sentencing minutes and plea minutes in his state criminal proceedings, and

laboratory reports on the controlled substances involved in his crimes. This argument

lacks merit.

       Section 1229a(c)(3)(B) provides that any of the following documents constitutes

proof of a criminal conviction: (i) an official record of judgment and conviction; (ii) an

official record of plea, verdict, and sentence; (iii) a docket entry from court records that

indicates the existence of the conviction; (iv) official minutes of a court proceeding or a

transcript of a court hearing in which the court takes notice of the existence of the

conviction; (v) an abstract of a record of conviction prepared by the court or certain State

officials that indicates the charge or section of law violated, the disposition of the case,

the existence and date of conviction, and the sentence; (vi) any document or record

prepared by, or under the direction of, the court in which the conviction was entered that

indicates the existence of the conviction; and (vii) any document or record attesting to the

                                               3
conviction that is maintained by an official of a State or Federal penal institution, which is

the basis for the institution’s authority to assume custody of the individual named in the

record. 8 U.S.C. § 1229a(c)(3)(B).

          Among other documents, the Government submitted a New York state court

document entitled “Sentence and Commitment,” which reflects that De Leon Morillo

received a sentence of two to six years for his convictions for the criminal sale of a

controlled substance in the third degree. The Government also submitted De Leon

Morillo’s Pre-Sentence Investigation report which reflects his convictions. These

documents fall squarely within subsection (vi) of Section 1229a(c)(3)(B). In addition, De

Leon Morillo admitted he was convicted of the criminal sale of a controlled substance in

the third degree at his hearing before the Immigration Judge. Although De Leon Morillo

claims his plea was unknowing, a challenge to his conviction is not properly before the

Court. See Drakes v. INS, 330 F.3d 600, 605 (3d Cir. 2003) (holding that a habeas

petitioner cannot collaterally attack the conviction serving as a predicate for a removal

order).

          Accordingly, we will deny the petition for review.




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