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


7-11-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4509




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 04-4509
                                      ___________

                             LEON EMANUEL PHILLIPS,
                                           Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES
                        ________________________

                        Petition for Review of an Order of the
                         United States Department of Justice
                            Board of Immigration Appeals
                                (BIA No. A37 453 263)
                   Immigration Judge: Honorable Alberto J. Riefkohl
                             ________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     July 2, 2008

          RENDELL, GREENBERG and VAN ANTWERPEN, Circuit Judges

                                  (Filed: July 11, 2008)
                                      ___________

                              OPINION OF THE COURT
                                   ___________

PER CURIAM

      Leon Phillips petitions for review of a Board of Immigration Appeals (“BIA”)

decision vacating the Immigration Judge’s (“IJ”) grant of a discretionary waiver from

deportation under 8 U.S.C. § 1182(c), former § 212(c) of the Immigration and Nationality
Act. We will deny the petition for review.

       Phillips is a native and citizen of Jamaica. He entered the United States in 1980 as

a lawful permanent resident when he was nine years old. In 1992, Phillips was convicted

in New Jersey state court of possession of marijuana with intent to distribute within 1,000

feet of a school. In 1993, the Immigration and Naturalization Service issued an order to

show cause charging that Phillips was subject to deportation because he was convicted of

violating a law relating to a controlled substance and because he was convicted of an

aggravated felony, as defined by the Immigration and Nationality Act.

       Phillips conceded his conviction, but he denied that he was deportable as charged

and moved to terminate the proceedings. On May 5, 1995, the IJ denied Phillips’ motion

to terminate, ruling that Phillips was not an aggravated felon because he was not

sentenced to five or more years in prison, but holding that he was deportable for violating

a law relating to a controlled substance, other than a single offense involving possession

for one’s own use of 30 grams or less of marijuana.

       Phillips applied for a waiver from deportation under former § 212(c) of the

Immigration and Nationality Act. On May 9, 1995, the IJ held a hearing on the merits of

the application. On September 25, 1996, the IJ issued a “Memorandum Temporary

Order” holding Phillips’ proceedings in abeyance pending a decision by the Attorney

General or the Supreme Court addressing whether the Antiterrorism and Effective Death

Penalty Act of 1996, effective April 24, 1996, precluded Phillips from seeking a waiver.



                                             2
       On June 27, 1997, the IJ ordered Phillips’ deportation, concluding that he was

ineligible for a waiver under a recent decision by the Attorney General. Phillips

appealed, arguing that he was eligible for a waiver and that his application should have

been considered on the merits. It appears that the BIA remanded the matter to the IJ to

consider Phillips’ application on the merits after the Supreme Court decided I.N.S. v. St.

Cyr, 533 U.S. 289 (2001), under which Phillips was eligible for a waiver.1

       In 2003, after a hearing, the IJ granted Phillips’ application for a § 212(c) waiver.

The IJ found Phillips’ situation in 2003 “completely different” from his situation in 1995.

The IJ explained that Phillips was now married, had a daughter and a stepdaughter, had

steady employment, and had been rehabilitated completely. The IJ recognized that

Phillips was arrested in 1997 for possession of marijuana, but stated that the charges were

disposed of under New Jersey’s disorderly offense statute, and that he had avoided any

other problems. The IJ stated that Phillips has been a lawful permanent resident since he

was nine years old, that he had no family in Jamaica, and that he had matured and

understood his obligations as an adult. The IJ also noted that Phillips was trying to obtain

legal custody of his daughter, whose mother was unstable. The IJ expressed concern

about the care of Phillips’ daughter if he were removed.

       The Government appealed, and the BIA vacated the grant of a waiver. The BIA



  1
    The remand order and the June 27, 1997, deportation order are not included in the
administrative record. Although the BIA returned the record to the IJ on March 31, 2000,
to supply the June 27, 1997, decision, it was apparently not provided.

                                              3
found that the record supported the IJ’s determination that Phillips had been rehabilitated,

but concluded that the equities in the case were not sufficiently unusual or outstanding to

outweigh the serious negative factors of Phillips’ criminal conviction for possessing drugs

with the intent to sell them near a school and his subsequent conviction for possession of

marijuana.2 This petition for review followed.

       We must first address our jurisdiction to entertain Phillips’ petition for review.

The Government argues that we lack jurisdiction to review the BIA’s discretionary denial

of a waiver. Phillips, however, does not challenge the discretionary denial of relief.

Rather, he raises two legal arguments for our review. Although the Government further

argues that we lack jurisdiction because Phillips is a criminal alien, we have jurisdiction

to consider Phillips’ constitutional claims and questions of law. See Kamara v. Attorney

General, 420 F.3d 202, 210 (3d Cir. 2005). The Government’s motion and renewed

motion to dismiss the petition for review for lack of jurisdiction are denied.

       Phillips primarily argues in his petition for review that his conviction is not an

aggravated felony. Although the IJ described Phillips as an aggravated felon in his 2003

decision on the waiver application, as noted above, on May 5, 1995, the IJ ruled that

Phillips is not an aggravated felon because he was not sentenced to five or more years in

prison. A.R. at 339-42. The IJ held that Phillips is deportable for violating a law relating



  2
   One board member dissented, stating that Phillips showed sufficient equities to
overcome his convictions, and that she would affirm the IJ’s favorable exercise of
discretion.

                                              4
to a controlled substance, other than a single offense involving possession for one’s own

use of 30 grams of less of marijuana. The IJ reaffirmed this ruling at the May 9, 1995,

merits hearing. A.R. at 168-70. The administrative record does not reflect that the IJ

amended this decision. In any event, we need not decide whether Phillips’ conviction

constitutes an aggravated felony. Phillips was found deportable pursuant to 8 U.S.C.

§ 1251(a)(2)(B) (now § 1227(a)(2)(B)) for a controlled substance violation, and he does

not dispute that he is deportable on this basis.3

       Phillips also argues that the BIA improperly reviewed the IJ’s decision de novo,

and that the BIA should have applied a clearly erroneous standard of review. We

disagree. The applicable regulations provide that the BIA may review questions of law,

discretion, and judgment and all other issues in appeals from decisions of immigration

judges de novo. 8 C.F.R. § 1003.1(d)(3)(ii). Although a clearly erroneous standard

applies to the IJ’s factual findings, 8 C.F.R. § 1003.1(d)(3)(i), the BIA did not disagree

with the IJ’s factual findings. Rather, the BIA concluded that Phillips had not shown that

unusual or outstanding equities offset the seriousness of his convictions and warranted a

discretionary grant of a waiver.

       Accordingly, we will deny the petition for review.


  3
   It is also not clear that we would have jurisdiction to entertain Phillips’ argument that
he is not an aggravated felon because he may have waived the issue in the administrative
proceedings. Phillips does not appear to have challenged his deportability after the IJ
issued its June 27,1997, order of deportation. He only argued that he was eligible for a
waiver. Phillips did raise an issue as to his deportability in response to the Government’s
appeal of the IJ’s grant of a waiver. The Government argued that the issue was not
properly before the BIA, and the BIA did not address the issue in its decision.

                                               5
