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


5-10-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1898




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                                                                     NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                    __________

                                          No. 05-1898
                                          __________


                              BARRINGTON SMALLHORNE,
                                           Appellant

                                                v.

                  ATTORNEY GENERAL OF THE UNITED STATES *
                               __________

                          On Petition for Review of an Order of the
                               Board of Immigration Appeals
                                  Agency No. A35-959-428
                         Immigration Judge: Charles A. Wiegand III

       Initially Docketed as an Appeal from District of New Jersey No. 04-cv-5965
                    Prior to the Enactment of the Real ID Act on 2005

                       District Judge: The Honorable Jose L. Linares
                                         _________

              Submitted under Third Circuit LAR 34.1(a) – January 23, 2006
                                      _________

                   Before: RENDELL and STAPLETON, Circuit Judges.




       *
         Because we have converted the present case into a petition for direct review, we are
required to substitute the Attorney General for the current respondent (Secretary, U.S.
Department of Homeland Security). 8 U.S.C. § 1252(b)(3)(A).

                                                1
                               and POLLAK,** District Judge.

                                    (Filed: May 10, 2006)
                                           _______

                                           OPINION
                                           ________


POLLAK, District Judge:

       Appellant Barrington Smallhorne appeals an order of the United States District

Court for the District of New Jersey denying Smallhorne’s petition for habeas corpus.

       Because we write primarily for the parties, who are presumably familiar with the

facts and procedural history of the case, we will summarize the facts and history of the

case only briefly. Smallhorne, a citizen of Jamaica, was admitted to the United States as

an immigrant in December 1979. In 1993, he was convicted in New York of criminal

possession of a weapon and criminal possession of a controlled substance in the seventh

degree. He was convicted of a similar drug offense in 1996. As a result of these

convictions, removal proceedings were instituted against Smallhorne, and he was

detained and transferred to a detention center in Oakdale, Louisiana. There, on

September 12, 1997, an immigration judge determined Smallhorne had been convicted of

an aggravated felony and therefore ordered him removed. Smallhorne appealed to the

BIA, but his appeal was dismissed by order dated January 19, 2000. Smallhorne later



       **
         Honorable Louis H. Pollak, District Judge for the United States District Court of the
Eastern District of Pennsylvania, sitting by designation.

                                                2
moved the BIA to reconsider, which the BIA declined to do by order dated June 22, 2000.

The record does not indicate that Smallhorne appealed either of these decisions 1 .

       For reasons not made clear by the record, Smallhorne was released from INS

custody at some point, but he was re-arrested and taken into custody in New Jersey on

October 7, 2004. After his re-arrest, on October 22, 2004, Smallhorne filed a motion to

reopen his case with the BIA. The BIA denied that motion on November 24, 2004. On

December 6, 2004, Smallhorne filed a petition for habeas corpus in federal court in New

Jersey. The District Court denied Smallhorne’s petition on March 8, 2005, finding it

lacked jurisdiction to review, under the auspices of a petition for habeas corpus, the

BIA’s exercise of discretion in denying a motion to reopen. On March 19, 2005,

Smallhorne filed a notice of appeal.

       On May 11, 2005, the President signed into law the so-called “Real ID Act.” Pub.

L. No. 109-13, 119 Stat. 231. Among other things, the Real ID Act dramatically alters

the regime of judicial review of removal orders by providing that, except in very limited

circumstances, “a petition for review filed with an appropriate court of appeals . . . shall



       1
          Smallhorne did file a petition for habeas corpus on July 7, 2000 in the United States
District Court for the Southern District of New York. However, that proceeding was dismissed
without prejudice by stipulation of the parties pending the outcome of Calcano-Martinez v. INS,
232 F.3d 328 (2d Cir. 2000), which was then pending before the Court of Appeals. According to
the government, the stipulation specified that, if Smallhorne failed to reinstate his petition within
30 days of the Court of Appeals’ decision in Calcano-Martinez, his petition would be deemed
dismissed with prejudice. The government represents that Smallhorne never reinstated his
petition, and therefore it was dismissed with prejudice. Smallhorne does not dispute this
assertion.

                                                  3
be the sole and exclusive means for judicial review of an order of removal. . . .” 8 U.S.C.

§ 1252(a)(5). District courts therefore no longer have authority to entertain habeas

corpus petitions that challenge removal orders. See Bonhometre v. Gonzales, 414 F.3d

442, 445-46 (3d Cir. 2005); Jordon v. Attorney Gen., 424 F.3d 320, 326 (3d Cir. 2005).

       On July 15, 2005, just days after briefing in the instant case was completed, this

Court considered how to proceed in a procedural situation akin to Smallhorne’s. See

Bonhometre, 414 F.3d 442. In Bonhometre, we noted that “[i]n the Real ID Act . . .

Congress was silent as to what was to be done with an appeal from a district court habeas

decision that is now pending before a court of appeals.” Id. at 446. We went on to decide

that such petitions “are properly converted to petitions for review and retained by this

Court” and are evaluated as if the district court opinion did not exist. Id. Smallhorne’s

petition, like Bonhometre’s, was pending before this Court on the day the Real ID Act

was signed into law, and we therefore convert it to a petition for review 2 .

       The sole argument presented by Smallhorne in his brief on appeal from the District

Court order denying his habeas petition is that none of his New York convictions,



       2
           Having been so converted, Smallhorne’s case faces an additional procedural oddity
created by the Real ID Act. 8 U.S.C. § 1252(b)(2), as amended, instructs that petitions for
review “shall be filed with the court of appeals for the judicial circuit in which the immigration
judge completed the proceedings.” Smallhorne’s removal proceedings were conducted in
Louisiana, within the geographic reach of the Fifth Circuit. However, § 1252(b)(2) is a venue
provision, not a jurisdictional provision, and, under circumstances similar to those presented
here, this court has retained cases despite this technical defect in venue. See Bonhometre, 414
F.3d at 446 n.5; Belizaire v. Att’y General, 152 Fed. Appx. 258, 259 n.1 (3d Cir. 2005). We will
follow suit and decide Smallhorne’s case.

                                                4
considered independently or in combination, amount to an “aggravated felony” within the

meaning of the INA, and he therefore should have been eligible for cancellation of

removal. In relying on this argument, Smallhorne ignores the procedural posture of this

case. Smallhorne’s petition for habeas corpus requested relief from the BIA’s refusal to

reopen his case, not the BIA’s dismissal of his appeal on the merits (i.e. – the BIA’s

determination that his New York drug convictions constituted an aggravated felony) 3 .

Absent exceptional circumstances, we do not consider issues on appeal that were not

raised with the District Court. Continental Casualty Co. v. D’Andrea, 150 F.3d 245, 251

(3d Cir. 1998). Smallhorne points to no exceptional circumstances that would justify our

departure from the general rule in this case – indeed, Smallhorne fails even to

acknowledge that he did not raise before the District Court the argument he presents in

this appeal. It is true that Bonhometre instructs us to ignore the District Court opinion in

cases, such as this one, that are converted to petitions for direct review. However,

Bonhometre does not require us to turn a blind eye to the history of the case before us.

While we will, in conformity with Bonhometre, vacate the District Court’s opinion and

consider this case as if that opinion did not exist, we see no reason to disregard the fact

that Smallhorne’s challenge to the merits of the removal order against him is made for the

first time in this appeal. We will not consider that challenge, as it was not presented in



       3
          The BIA’s merits ruling was referred to, and characterized as erroneous, in the habeas
petition, but that was not the asserted BIA error on which petitioner grounded his claim of
entitlement to habeas relief.

                                                5
the petition filed by Smallhorne in the District Court 4 .

       The only matter properly before this court is the issue that was presented to the

District Court – namely, the propriety of the BIA’s denial of Smallhorne’s motion to

reopen 5 . A motion to reopen a case in the BIA is governed by 8 C.F.R. § 1003.2(c),

which provides, with certain exceptions not applicable here, that a “motion [to reopen]

must be filed no later than 90 days after the date on which the final administrative

decision was rendered in the proceeding sought to be reopened.” Smallhorne filed his

motion to reopen with the BIA at least four years too late. We therefore discern no error

in the BIA’s denial of the motion to reopen. We will deny the petition for review.




       4
           See note 3, supra.
       5
          While that issue was not addressed in the brief filed on Smallhorne’s behalf in this
Court, we will consider the issue since it was the focus of the habeas petition that initiated the
litigation now before us.

                                                  6
