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


8-15-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1415




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                                                            NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT


                                  No. 06-1415
                               ________________

                             MICHAEL MARAGH,

                                                        Petitioner
                                        v.

                        ATTORNEY GENERAL OF THE
                             UNITED STATES,

                                                 Respondent
                   ____________________________________

                    On Petition for Review of a Decision of the
                         Board of Immigration Appeals
                            (Agency No. A37 213 598)
                  Immigration Judge: Honorable Grace A. Sease
                 _______________________________________

                   Submitted Under Third Circuit LAR 34.1(a)
                               August 15, 2006

       BEFORE: BARRY, CHAGARES and COWEN, CIRCUIT JUDGES

                             (Filed: August 15, 2006)

                           _______________________

                                  OPINION
                           _______________________

PER CURIAM

    Michael Maragh petitions for review of a final order of the Board of Immigration
Appeals (“BIA”). For the reasons that follow, we will dismiss the petition.

       Maragh, a citizen of Jamaica, entered the United States in 1980 as a lawful

permanent resident. In 1994, he was convicted of criminal sale of cocaine, in violation of

section 220.39 of the New York Penal Law. In 2001, he was convicted of criminally

negligent homicide, in violation of section 125.90 of the New York Penal Law. In 2003,

the Department of Homeland Security (“DHS”) initiated removal proceedings against

Maragh, charging that he was removable as an alien convicted of a controlled substance

violation, see Immigration and Nationality Act (“INA”) § 237(a)(2)(B)(I); 8 U.S.C.

§ 1227(a)(2)(B)(I); and convicted of an aggravated felony (an offense relating to the illicit

trafficking in a controlled substance), see INA § 237(a)(2)(A)(iii); 8 U.S.C.

§ 1227(a)(2)(A)(iii).

       An Immigration Judge (“IJ”) found Maragh removable but, in the exercise of her

discretion, granted a waiver of deportation under former INA § 212(c); 8 U.S.C.

§ 1182(c) (1994) (repealed). DHS appealed. On October 21, 2004, the BIA considered a

number of discretionary factors, both positive and negative,1 and found that Maragh did

not meet his burden of establishing that section 212(c) relief was warranted in the



   1
     For example, the BIA noted that Maragh came to the United States as a lawful
permanent resident when he was seven years old, that he had resided in the United States
for about twenty-four years, that he is married to a legal permanent resident and has three
United States citizen children, and that he has no family in Jamaica. The BIA also noted
that Maragh was convicted of criminally negligent homicide in addition to the drug
offense, that he had no steady employment history, that he does not financially or
emotionally support his sons.

                                             2
exercise of discretion. The BIA vacated the IJ’s decision and ordered Maragh’s removal

to Jamaica. Maragh filed a petition for review with this Court. On January 20, 2005, we

dismissed the petition for review for lack of subject matter jurisdiction (C.A. No. 04-

4383). In dismissing the petition, we noted that we lacked jurisdiction to review the final

removal order because Maragh is a removable alien convicted of a controlled substance

offense. We also noted that we lacked jurisdiction to review Maragh’s argument that the

BIA erred in denying discretionary relief under section 212(c).

       Meanwhile, Maragh filed with the BIA a motion to reconsider its October 21, 2004

decision. He argued that the IJ correctly accorded significant weight to evidence of

Maragh’s rehabilitation and family ties to the United States, and that the IJ properly

refused to deny section 212(c) relief on the basis of the criminally negligent homicide

conviction alone. Maragh also argued that the BIA gave undue weight to statements

contained in a pre-sentence investigation report regarding the criminally negligent

homicide. The BIA denied the motion to reconsider on January 14, 2005.

       Maragh then filed a habeas corpus petition under 28 U.S.C. § 2241 in the United

States District Court for the Southern District of New York. The District Court

transferred it to this Court for treatment as a petition for review under Section 106(c) of

the REAL ID Act of 2005.

        Under the REAL ID Act, we have jurisdiction to review questions of law or

constitutional issues raised in Maragh’s petition for review. 8 U.S.C. § 1252(a)(2)(D).

As we indicated in Maragh’s previous petition for review, we lack jurisdiction to consider

                                              3
denials of discretionary relief under section 212(c). See 8 U.S.C. § 1252(a)(2)(B)(ii). In

his brief, Maragh contends that the BIA committed legal error and violated his due

process rights when it gave undue weight to his conviction of criminally negligent

homicide in vacating the IJ’s order granting section 212(c) relief. By extension, it would

appear that Maragh’s position is that the BIA erred in denying his motion for

reconsideration on that basis.2 We agree with DHS that, despite Maragh’s attempt to

frame his arguments within the rubric of legal and constitutional issues, his claims

directly relate to the BIA’s exercise of discretion in determining that section 212(c) relief

is not merited in his case. We are not persuaded that he raises a question of law or

constitutional issue in arguing that the BIA erred in denying reconsideration of its order

denying discretionary relief.

       For the reasons that we have given, we will dismiss the petition for review.




   2
     As noted, we previously considered Maragh’s petition for review in C.A. No. 04-
4383. Therefore, the scope of the petition for review before us is limited to the BIA’s
denial of Maragh’s motion for reconsideration, and we will not consider his arguments
relating to the underlying final order of removal.

                                              4
