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


11-8-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2053




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                                                             NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT

                                  No. 05-2053
                               ________________

                         DALTON MICHAEL BROWN,
                                          Petitioner

                                        v.

ATTORNEY GENERAL OF THE UNITED STATES; THOMAS DECKER, Acting
  District Director of Immigration and Customs Enforcement; SECRETARY OF
                  DEPARTMENT OF HOMELAND SECURITY
                    ____________________________________
                                   No. 05-2774

                         DALTON MICHAEL BROWN,
                                          Petitioner
                                   v.

              ATTORNEY GENERAL OF THE UNITED STATES
                 ____________________________________

                          On Review of a Decision of the
                          Board of Immigration Appeals
                            (Agency No. A41 645 077)
                        Immigration Judge: Grace A. Sease
    Petition at No. 05-2774 transferred under Real ID Act initially docketed in
                       lower Court MDPA No. 05-cv-00673
                 _______________________________________

                   Submitted Under Third Circuit LAR 34.1(a)
                              November 3, 2006

       BEFORE: SLOVITER, McKEE and AMBRO, CIRCUIT JUDGES

                           (Filed: November 8, 2006)
                           _______________________

                                    OPINION
                               _______________________

PER CURIAM

       In the two proceedings before us, Dalton Michael Brown seeks review of a final

order of the Board of Immigration Appeals (BIA). We will deny the petitions for review.

                                             I.

       Brown, a citizen of Jamaica, entered the United States in 1987 as a lawful

permanent resident. In 2002, he was convicted in a New York state court of the criminal

sale of cocaine in the fifth degree.1 A.R. 133-35. He was sentenced to two to four years

in prison. Two years later, the Government charged him with removability, alleging that

the state drug conviction constituted both (i) an aggravated felony, see INA

§ 237(a)(2)(A)(iii) [8 U.S.C. § 1227(a)(2)(A)(iii)], and (ii) a controlled substance offense,

see INA § 237(a)(2)(B)(i) [8 U.S.C. § 1227(a)(2)(B)(i)]. The immigration judge (IJ)

found Brown removable on both bases. See A.R. 47-78. Brown, who represented

himself during the removal proceedings, sought cancellation of removal under INA

§ 240A [8 U.S.C. § 1229b] or relief under former INA § 212(c) [8 U.S.C. § 1182(c)].

See, e.g., A.R. 62. The IJ concluded, however, that Brown was eligible for neither kind

of relief. A single member of the BIA affirmed. A.R. 2. Continuing to act pro se, Brown




   1
     Brown was also convicted on a charge of attempted assault. Although he argues in
his brief in C.A. No. 05-2774 that attempted assault is not a deportable offense, he was
not charged with removability on the basis of that conviction. See A.R. 148. Only the
drug conviction is an issue in this case.

                                              2
timely2 petitioned us for review, and the proceeding was docketed by the Clerk at C.A.

No. 05-2053.

       At about the same time, Brown filed a habeas petition in the United States District

Court for the Middle District of Pennsylvania. In the petition, he argued that Congress’s

repeal of INA § 212(c) was impermissibly retroactive as to him because he committed his

offense in 1994, when § 212(c) relief was still available. See Habeas Petition, 3-15.

Shortly after Brown filed the petition, Congress enacted the Real ID Act of 2005, which

required the transfer of a habeas petition like Brown’s to this court for treatment as a

petition for review. See Real ID Act of 2005, Pub. L. No. 109-13, Div. B, § 106(c), 119

Stat. 231 (May 11, 2005); Bonhometre v. Gonzales, 414 F.3d 442, 446 (3d Cir. 2005).

On the District Court’s transfer, the Clerk docketed Brown’s new proceeding (i.e., his

second petition for review) at C.A. No. 05-2774.

       In Brown’s first appeal, C.A. No. 05-2053, the Government—represented by the

Justice Department’s Office of Immigration Litigation—has filed, in lieu of a brief, a

motion for summary affirmance and to dismiss. In C.A. No. 05-2774, the Government—

represented by the United States Attorney’s Office for the Middle District of

Pennsylvania—has filed a brief. Brown has filed a brief in each case.


   2
     Because Brown was detained by the Department of Homeland Security when he
mailed his petition for review, we deem it filed on March 27, 2005, the date he turned it
over to prison officials for mailing (and not on April 4, 2005, when it was received by the
Clerk). Cf. Houston v. Lack, 487 U.S. 266, 276 (1988). Even if Brown’s petition for
review had been untimely, we would have jurisdiction over his claims in C.A. No. 05-
2774.

                                              3
                                             II.

       Brown’s proceedings in this court both present the same questions—primarily

whether the IJ and BIA rightly concluded that he was ineligible for relief under former

INA § 212(c). Accordingly, we resolve the two petitions in this single opinion. We have

jurisdiction pursuant to INA § 242(a)(1) [8 U.S.C. § 1252(a)(1)]. Our review extends to

“constitutional claims or questions of law” raised in petitions for review filed by

aggravated felons. INA § 242(a)(2)(D). We exercise plenary review over the purely

legal questions at issue in Brown’s case. See Tran v. Gonzales, 414 F.3d 464, 467 (3d

Cir. 2005) (holding that whether a state offense qualifies as an aggravated felon is a pure

question of law); Garcia v. Atty. Gen’l, ___ F.3d ___, 2006 WL 2529471, at *2 (3d Cir.

Sept. 5, 2006) (noting the standard of review for constitutional claims).

       It appears that Brown has never contested that his New York state conviction for

the criminal sale of cocaine in the fifth degree, see N.Y. PENAL LAW § 220.31, constitutes

an aggravated felony. Accordingly, the issue is not properly before us. See Bejar v.

Ashcroft, 324 F.3d 127, 132 (3d Cir. 2003) (on the consequences of an alien’s failure to

exhaust an argument).3 Apparently accepting that he is an aggravated felon, Brown


   3
     In any event, even if the issue were fairly pressed in some of Brown’s pleadings, see
Haines v. Kerner, 404 U.S. 519, 520 (1972), we would conclude that the offense is “illicit
trafficking in a controlled substance,” made an aggravated felony by INA § 101(a)(43)(B)
[8 U.S.C. § 1101(a)(43)(B)]. A state drug conviction may be found an aggravated felony
under either of two routes. Under one of those routes, known as the “hypothetical felony
route,” an offense is an aggravated felony when “regardless of categorization [by the
state], [it] would be punishable as a felony under an analogous federal statute.” Wilson v.
Ashcroft, 350 F.3d 377, 381 (3d Cir. 2003); Gerbier v. Holmes, 280 F.3d 297, 313-15 (3d

                                              4
argues that he should be available for relief under former INA § 212(c). See, e.g.,

Informal Brief, C.A. No. 05-2053, 6 ¶ 8. However, in April 1996, in § 440(d) of the

Antiterrorism and Effective Death Penalty Act (AEDPA), Congress narrowed the class of

aliens who could obtain § 212(c) relief. Aggravated felons and those convicted of certain

drug crimes were made ineligible. See Perez v. Elwood, 294 F.3d 552, 557 (3d Cir.

2002). Thereafter, in § 304(b) of the Illegal Immigration Reform and Immigrant

Responsibility Act (IIRIRA), Congress altogether repealed the § 212(c) waiver; that

repeal became effective on April 1, 1997. See id. These repeals directly affect Brown,

whose conviction occurred in 2002.

       In INS v. St. Cyr, 533 U.S. 289 (2001), the Supreme Court held that AEDPA’s

repeal of § 212(c) was unconstitutionally retroactive as to persons who pleaded guilty

prior to the amendment of § 212(c). We have since extended St. Cyr to persons who

declined a plea agreement and proceeded to trial at a time when they might reasonably

have relied on the availability of a § 212(c) waiver. Ponnapula v. Ashcroft, 373 F.3d 480,

494 (3d Cir. 2004). Brown contends that these cases, and others, mean that § 212(c)

relief must be available to him because he committed his criminal conduct prior to the

1996 and 1997 limitations on § 212(c) relief. See A.R. 15-19. In his view, the fact that



Cir. 2002). The state statute Brown violated criminalizes the conduct of “knowingly and
unlawfully sell[ing] a controlled substance.” N.Y. PENAL LAW § 220.31. The analogous
federal offense is a felony, distribution of a controlled substance. Wilson, 350 F.3d at
381; see also 21 U.S.C. §§ 841(a), (b). Under the “hypothetical felony approach,” Brown
is an aggravated felon.

                                             5
he was not convicted until 2002 should be irrelevant. A.R. 15 (arguing that the “relevant

‘event’ for purposes of evaluating the retroactive effect [of AEDPA and IIRIRA]” is his

“commission of the criminal offense” prior to AEDPA).

       Brown is mistaken. In both St. Cyr and Ponnapula, the relevant date was the date

of conviction, not the date of the criminal conduct. See also Santa Cruz-Bucheli v.

Gonzales, ___ F.3d ___, 2006 WL 2709455, at *2 (1st Cir. Sept. 22, 2006) (reaching the

same conclusion); Domond v. INS, 244 F.3d 81, 86 (2d Cir. 2001) (same). Moreover, in

Ponnapula, we specifically rejected any argument that an alien might reasonably have

committed criminal conduct in reliance on the existence of § 212(c) relief. “‘[I]t would

border on the absurd’ to argue that an alien would refrain from committing crimes . . . if

he knew that after he had been imprisoned and deported, a discretionary waiver of

deportation would no longer be available to him.” Ponnapula, 373 F.3d at 496 n.14

(quoting LaGuerre v. Reno, 164 F.3d 1035, 1041 (7th Cir. 1998)). Accordingly, Brown’s

argument cannot succeed. Because his conviction occurred long after the repeal of

§ 212(c), the repeal was not retroactively impermissible as to him.

       After the repeal of § 212(c), Congress replaced it with a form of relief known as

cancellation of removal. See INA § 240A. Unfortunately for Brown, and as the IJ

correctly explained to him, see A.R. 62, this form of relief is wholly unavailable to

aggravated felons. § 240A(a)(3).4


   4
   Before the BIA, Brown argued that he was entitled to relief under the International
Covenant on Civil and Political Rights (ICCPR) and/or the Convention on the Rights of

                                             6
                                             III.

       For the foregoing reasons, we will deny Brown’s petitions for review in C.A. No.

05-2053 and C.A. No. 05-2774. Respondent’s motion in C.A. No. 05-2774 for summary

affirmance and to dismiss is GRANTED to the extent that it seeks denial of Brown’s

petition.




the Child. A.R. 23-25. He does not press these arguments in this court, and we need not
address them. See, e.g., United States v. Garth, 188 F.3d 99, 105 n.7 (3d Cir. 1999) (on
the consequences of a pro se litigant’s failure to raise an issue in his briefs). We note, in
any event, that neither the non-self-executing ICCPR nor the unratified Convention could
possibly provide Brown with any relief. See Guaylupo-Moya v. Gonzales, 423 F.3d 121,
136-37 (2d Cir. 2005) (ICCPR); Martinez-Lopez, 454 F.3d 500, 502 (5th Cir. 2006)
(Convention).                                      7
