                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-8-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1897




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                                                             NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                     NO. 06-1897
                                  ________________

                                 KONG XIN WANG,
                                        Petitioner

                                           v.

                            ATTORNEY GENERAL USA,
                                        Respondent
                       ____________________________________

                           On Petition for Review of an Order
                           of the Board of Immigration Appeals
                                 Agency No. A71 502 111
                                     on May 5, 2004
                          Immigration Judge: Walter A. Durling
                      _______________________________________


                       Submitted Under Third Circuit LAR 34.1(a)
                                   February 7, 2007

            Before:     SLOVITER, MCKEE AND AMBRO, Circuit Judges.

                               (Filed: February 8, 2007)

                              _______________________

                                     OPINION
                              _______________________

PER CURIAM

      Kong Xin Wang, a native and citizen of China, petitions for review of a decision

of the Board of Immigration Appeals (BIA), dismissing his appeal from an Immigration
Judge’s (IJ’s) order of removal. We will deny the petition.

       Wang was paroled into the United States in 1992. He then applied for asylum,

based on his alleged persecution under China’s family planning policy, but his application

remained unadjudicated, and in August 2003 he was placed in removal proceedings based

on his conviction for criminal sale of a controlled substance (heroin), in violation of New

York Penal Law § 220.29.1 The IJ found that his crime was particularly serious, and that

he was therefore statutorily ineligible for asylum or withholding of removal. A.R. 32.

The IJ recognized that he remained potentially eligible, however, for deferral of removal

under the United Nations Convention Against Torture (CAT). Wang argued that if he

were to be returned to China, he would be detained, and that he would be tortured or

possibly killed when Chinese officials learned that he had been a drug dealer. A.R. 33.

Wang also noted that the sentencing judge in his criminal case had issued a judicial

recommendation against deportation (JRAD). A.R. 33, 61, 218-19. The IJ found that

Wang would probably be detained for some period of time when he returned to China, but

that any possibility that he would be subjected to torture was purely speculative. A.R. 35.

The IJ thus denied relief pursuant to the CAT.

       On appeal, the BIA agreed that Wang’s conviction constituted a particularly

serious crime, and that he was therefore potentially eligible only for deferral of removal.



   1
    Wang had been convicted in 1999 on five criminal counts and was placed in removal
hearings, but the convictions were vacated in 2002 for a new trial, so the proceedings
were terminated. A.R. 40.
                                             2
The BIA noted that even if Wang were to be detained temporarily upon his return to

China, temporary incarceration does not constitute torture. The BIA noted that Wang’s

contention that drug dealers are executed in China was not supported by any evidence.

The BIA further found that the letter from Wang’s sentencing judge only contained

unsupported representations from Wang or his attorney. The BIA noted that there was no

evidence that China incarcerates those who return from abroad after having committed a

crime abroad, and therefore Wang could not show he was more likely than not to be

tortured upon his return. The BIA therefore dismissed the appeal.

       Wang filed a petition for a writ of habeas corpus in the United States District Court

for the Eastern District of Pennsylvania. The petition was transferred on motion of the

Government to this Court, pursuant to the REAL ID Act of 2005, Pub. L. No. 109-13,

div. B, 119 Stat. 231 (2005), and is now considered to be a petition for review of his

removal order. Hernandez v. Gonzales, 437 F.3d 341, 344 (3d Cir. 2006).

       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 Wang has been

convicted of a controlled substance violation, we may consider only constitutional issues,

                                             3
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). “[F]actual or discretionary

determinations continue to fall outside [our] jurisdiction.” Sukwanputra v. Gonzales, 434

F.3d 627, 634 (3d Cir. 2006).

       Thus, to the extent Wang argues that the BIA erred in its factual determination that

he would not be incarcerated upon his return, or that his incarceration would be only

temporary and would not subject him to torture, we lack jurisdiction to review those

factual findings.

       Wang’s brief may also be generously construed to raise a legal claim–that the BIA

erred in failing to follow his sentencing judge’s JRAD. As the Government notes in its

brief, statutory relief by way of a JRAD was eliminated in 1990. See United States v.

Hovsepian, 359 F.3d 1144, 1157 (9th Cir. 2004) (en banc) (Congress eliminated JRADs by

way of its enactment of Pub. L. No. 101-649, § 505, 104 Stat. 4978 (1990)). Further,

even when JRADs were an available means of relief, the relief was only available to an

alien who had committed a crime involving moral turpitude. 8 U.S.C. § 1251(b) (1990).

The statute specifically precluded such relief for an alien who committed a controlled

substance violation. Id. Thus, the BIA did not err in failing to give preclusive effect to

the JRAD.

       For the foregoing reasons, Wang’s petition for review will be denied.




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