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


3-22-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2691




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                                                        NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                       NO. 05-2691
                                    ________________

                                    GREGORY SCOTT,
                                                               Petitioner

                                              v.

                 *ATTORNEY GENERAL OF THE UNITED STATES,
                                               Respondent

                     (*Amended pursuant to Clerk’s Order of 6/16/05)
                       ____________________________________

                            On Review of a Decision of the
                            Board of Immigration Appeals
                              (Agency No. A77 322 711)
                         Immigration Judge: Walter A. Durling
                     _______________________________________


                        Submitted Under Third Circuit LAR 34.1(a)
                                    March 21, 2006

      Before: SLOVITER, SMITH AND VAN ANTWERPEN, CIRCUIT JUDGES

                                  (Filed: March 22, 2006)
                                _______________________

                                       OPINION
                                _______________________


PER CURIAM

      Gregory Scott, a native and citizen of Belize, petitions for review of a final order of

the Board of Immigration Appeals (“BIA”). The respondent, the Attorney General, has
moved to dismiss, contending that the petition for review was not timely filed. We agree.

Thus, we will grant the motion to dismiss, and will dismiss the petition for review.

       Scott first entered the United States in 1997. Thereafter, he was arrested in Chicago,

Illinois, on drug charges. Scott was released on bail and traveled to Belize. In September

2000, Scott attempted to re-enter the United States. He was detained and then paroled into

the country to face the pending Illinois charges. In February 2001, Scott was convicted of

possession of a controlled substance (cocaine) with intent to deliver in violation of section

401(d) of the Illinois Controlled Substances Act (720 ILCS 570/401(d)).

       In August 2004, Scott was charged as being removable as an alien whom a consular

officer or the Attorney General had reason to believe to be an illicit trafficker in a controlled

substance, see Immigration and Nationality Act (“INA”) § 212(a)(2)(C)(i) [8 U.S.C.

§ 1182(a)(2)(C)(i)], and as an alien convicted of violating a controlled substance law, see

INA § 212(a)(2)(A)(i)(II) [8 U.S.C. § 1182(a)(2)(A)(i)(II)]. An Immigration Judge (“IJ”)

found that Scott was removable as charged and that he was ineligible for a waiver of

inadmissibility under INA § 212(h) [8 U.S.C. § 1182(h)]. The Board of Immigration

Appeals (“BIA”) affirmed on April 15, 2005.

       On May 24, 2005, Scott filed a habeas corpus petition pursuant to 28 U.S.C. § 2241

in the United States District Court for the Middle District of Pennsylvania. Without taking

any action on the § 2241 petition, the District Court transferred the petition to this Court for

treatment as a petition for review pursuant the REAL ID Act of 2005. Pub. L. No. 109-13,




                                                2
Div. B, 119 Stat. 231 (May 11, 2005). The respondent filed a motion to dismiss, arguing

that the petition for review was untimely filed.

        The REAL ID Act, which became law on May 11, 2005, amended INA § 242 so that

petitions for review filed with the courts of appeals are the “sole and exclusive means for

judicial review of” most orders of removal, including the order of removal at issue in this

case. See INA § 242(a)(5) [8 U.S.C. § 1252(a)(5)]; see also Bonhometre v. Gonzales, 414

F.3d 442, 445 (3d Cir. 2005). “In so doing, the Act expressly eliminated district courts’

habeas jurisdiction over removal orders.” Jordon v. Attorney General, 424 F.3d 320, 326

(3d Cir. 2005) (citing Bonhometre, 414 F.3d at 445). Thus, when Scott filed his § 2241

petition on May 24, 2005, the District Court was without jurisdiction to entertain it. Indeed,

after May 11, 2005, the only means for review of Scott’s removal order was a petition for

review.

        A petition for review must be filed within 30 days of a final order of removal. See

INA § 242(b)(1) [8 U.S.C. § 1252(b)(1)]; Malvoisin v. INS, 268 F.3d 74, 75 (2d Cir. 2001).

The courts of appeals “may not extend the time to file” a petition for review of an order of

an administrative board, such as the BIA. Fed. R. App. P. 26(b)(2); Malvoisin, 268 F.3d at

76. Because the BIA’s decision was filed on April 15, 2005, Scott had until Monday, May

16, 2005 to file a timely petition for review.1 Scott’s § 2241 petition, dated May 20, 2005,

was not timely.


    1
     The thirtieth day was Sunday, May 15, so a timely petition could have been filed the
 next day. See Fed. R. App. P. 26(a); Shendock v. Dir., OWCP, 893 F.2d 1458, 1461 n.6
 (3d Cir. 1990) (en banc).

                                               3
       Under these circumstances, we will grant the government’s motion to dismiss, and

will dismiss the petition for review. Scott’s motion for leave to expand the record is granted.
