                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-6-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1970




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                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                     No. 04-1970


                              MICHELLE CHAMBERS,
                                           Petitioner

                                          v.

                         Attorney General of the United States,
                                                  Respondent




                   PETITION FOR REVIEW OF A DECISION OF
                    THE BOARD OF IMMIGRATION APPEALS
                            Agency No. A35-501-023


                      Submitted Under Third Circuit LAR 34.1(a)
                                 September 16, 2005


               Before: SLOVITER, BARRY, and SMITH, Circuit Judges


                               (Filed: October 6, 2005 )


                                      OPINION


BARRY, Circuit Judge

      Michelle Chambers, a citizen of Jamaica, seeks review of a Board of Immigration

Appeals (“BIA”) determination that she is subject to removal under the Immigration and
Naturalization Act (“INA”) § 237 (a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien

convicted of an aggravated felony. Because we write primarily for the parties in this

matter, we will dispense with a full recitation of the facts and limit our discussion only to

those facts necessary to reach our decision.

       In February 2001, Chambers was convicted of multiple controlled substance

violations. Four months later, the Department of Homeland Security (“DHS”) charged

Chambers with being subject to removal under INA § 237 (a)(2)(B)(i) and (a)(2)(A)(iii)

as an alien convicted of a controlled substance violation and an aggravated felony,

respectively. 8 U.S.C. §§ 1227(a)(2)(B)(i), (a)(2)(A)(iii) (2000). Chambers conceded

that she was an alien and had been convicted of a controlled substance violation, but

challenged removal on the ground that her offense did not constitute an aggravated

felony. The Immigration Judge (“IJ”) found that Chambers was subject to removal for a

controlled substance violation but nonetheless granted her application for cancellation of

removal. In an earlier decision, the IJ also found that DHS failed to establish that

Chambers’ conviction for possession with the intent to deliver a controlled substance was

an aggravated felony for purposes of § 237(a)(2)(A)(iii), and that she was, therefore, not

subject to removal on that ground. DHS appealed both findings to the BIA. The BIA

sustained the appeal, determining that Chambers was convicted of a drug trafficking

crime which was an aggravated felony, and, thus, that she was ineligible for cancellation

of removal. In this appeal, Chambers challenges that determination. She did not and



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does not now challenge the IJ’s finding that she is subject to removal as a controlled

substance violator.

       Under 8 U.S.C. § 1252(a)(2)(C), where no constitutional claim or question of law

has been raised, we lack jurisdiction to review “any final order of removal against an

alien who is removable” because of a conviction for a controlled substance violation.

Moreover, in Douglas v. Ashcroft, 374 F.3d 230 (3d Cir. 2004), we held that we lack

jurisdiction to review “one of two alternative reasons supporting a final order of removal

when the other reason, which is not challenged by the petitioning party, deprives us of

jurisdiction to review the same order of removal.” Id. at 235. Thus, in Douglas we

determined that we lacked jurisdiction to consider petitioner’s challenge to the BIA’s

conclusion that he was removable as an alien convicted of an aggravated felony because

“the BIA’s order of removal stands on the independent basis of [petitioner’s substance

abuse conviction] which is not subject to judicial review under the INA.” Id. Similarly,

we lack jurisdiction to review the BIA’s determination that Chambers is subject to

removal as an alien convicted of an aggravated felony because her conviction for a

controlled substance violation constitutes an alternative and unchallenged ground for

removal that deprives us of jurisdiction to review the order of removal.

       Because we lack jurisdiction to review the BIA’s order of removal, we will grant

respondent’s motion to dismiss the petition for review for lack of jurisdiction. The stay

of removal will be vacated.



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