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


8-1-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3256




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"Scott v. Atty Gen USA" (2006). 2006 Decisions. Paper 637.
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                                                      NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                    No. 05-3256
                                 ________________

                             JULIAN JEROME SCOTT,

                                      Petitioner

                                          v.

              ATTORNEY GENERAL OF THE UNITED STATES,

                                 Respondent
                    ____________________________________

                    On Petition for Review of a Decision of the
                         Board of Immigration Appeals
                      Immigration Judge Walter A. Durling
                            (Agency No. A95 208 431)
                  _______________________________________

                    Submitted Under Third Circuit LAR 34.1(a)
                               AUGUST 1, 2006

    Before: SLOVITER, SMITH AND VANANTWERPEN, CIRCUIT JUDGES

                               (Filed: August 1, 2006)

                            _______________________

                                    OPINION
                            _______________________

PER CURIAM

    Julian Jerome Scott, a citizen of Jamaica, petitions for review of a final order of
removal of the Board of Immigration Appeals (“BIA”). We will deny the petition.

       Scott came to the United States in 2001 as a temporary worker. In 2003, a notice

to appear was issued charging him with removability for remaining here for a time longer

than permitted. See 8 U.S.C. § 1227(a)(1)(B). An Immigration Judge (“IJ”) found Scott

removable as charged. The IJ also found that Scott was convicted in Pennsylvania state

court of Delivery of a Controlled Substance (Cocaine), as set forth in the Government’s

notice of additional charges of deportability. The IJ determined that this conviction

constituted an aggravated felony, as defined in 8 U.S.C. § 1101(a)(43)(B). The IJ further

noted that Scott married a United States citizen, who filed a visa petition on his behalf.

However, due to his aggravated felony conviction, the IJ concluded that Scott was

statutorily ineligible for an adjustment of status, a waiver of removal under § 212(h) of

the Immigration and Nationality Act (“INA”), or any other relief from removal. As a

result, the IJ ordered Scott’s removal to Jamaica.

       On appeal, the BIA agreed that Scott was removable and ineligible for any form of

relief from removal. The BIA adopted and affirmed the IJ’s decision. Scott filed a

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the United States

District Court for the Eastern District of Pennsylvania. The District Court transferred the

habeas petition to this Court to be treated as a petition for review pursuant to the Real ID

Act of 2005, Pub. Law No. 106-13. We have jurisdiction pursuant to § 106(c) of the Real

ID Act.

       Scott argues in his brief that the Government did not establish by clear and

                                              2
convincing evidence that he is removable based upon his controlled substance conviction

because the Government did not produce a laboratory report showing that the drug he

sold was in fact cocaine. Scott raised this claim for the first time in District Court in his

reply to the Government’s response to his habeas petition. He did not challenge his

removability in the administrative proceedings. Because Scott did not exhaust his

administrative remedies as required by 8 U.S.C. § 1252(d)(1), we lack jurisdiction to

consider this claim. Bonhometre v. Gonzales, 414 F.3d 442, 447-48 (3d Cir. 2005).

       Scott also argued in his habeas petition that his case should be remanded to the IJ

because the IJ did not inform him that he could apply for a waiver of removal under INA

§ 212(h) and relief under the Convention Against Torture (“CAT”). Scott maintained that

a § 212(h) waiver was warranted based upon the hardship he would face in Jamaica due

to the lack of medical treatment available for his sickle cell anemia. Scott also stated that

he feared persecution on political grounds. Alternatively, Scott asked the District Court

to dismiss the charges against him on humanitarian grounds due to his illness.

       Scott did not address these claims in his brief to this Court. To the extent he still

pursues them, the IJ found Scott statutorily ineligible for § 212(h) relief, and Scott did not

appeal that ruling to the BIA. Scott only asked the BIA, in its discretion, to stay or

dismiss the charges against him on humanitarian grounds due to his illness or remand his

case for further consideration by the IJ. As explained above, we lack jurisdiction to

consider Scott’s unexhausted claim. Under 8 U.S.C. § 1252(a)(2)(B), we also lack



                                               3
jurisdiction to review any discretionary decision by the BIA not to remand Scott’s case.1

       Finally, Scott did exhaust his claim that the BIA should have remanded his case to

the IJ so that he could apply for relief under the Convention Against Torture. In his

appeal to the BIA, Scott stated that he was forced to flee his home because the

government had sent soldiers after him due to his membership in the Jamaican Labor

Party.2 Scott did not provide any details about the alleged persecution or any evidence

supporting his representations. Absent a showing that he would have qualified for CAT

relief, we cannot conclude that a remand was required based upon the fact that the IJ did

not advise him that he could apply for such relief. See Bonhometre, 414 F.3d at 449

(stating in dicta that an IJ’s failure to advise an alien of his CAT eligibility did not

support a procedural due process violation where there were no facts in the record

supporting such a claim).

       Accordingly, we will deny the petition for review.




   1
   We also lack jurisdiction to consider Scott’s additional claims in the habeas
proceedings that he did not receive notice of the removal charges based upon his criminal
conviction and that his conviction did not constitute an aggravated felony. Scott did not
exhaust these claims in the administrative proceedings.
   2
    The BIA did not address this argument. The BIA erroneously stated that Scott’s CAT
claim was based upon his illness and denied a remand to the IJ to consider such a claim.

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