                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-8-2004

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Precedential or Non-Precedential: Precedential

Docket No. 04-1906




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                   PRECEDENTIAL        SLOVITER, Circuit Judge.

   UNITED STATES COURT OF
                                              The motion by the petitioner
APPEALS FOR THE THIRD CIRCUIT
                                       Hensworth Douglas for a stay of removal
                                       was routed to a motion panel of this court
                                       in accordance with our procedure.
                                       Douglas sought the stay of removal
            No. 04-1906
                                       pending our final decision on his petition
                                       for review of the Board of Immigration
                                       Appeals’ (“BIA”) order denying his
                                       application for cancellation of removal
    HENSWORTH DOUGLAS,
                                       under 8 U.S.C. § 1229b(a) and ordering
                                       his removal to Jamaica. Respondent, the
                          Petitioner
                                       Attorney General, has filed a motion to
                                       dismiss Douglas’ petition for lack of
                  v.
                                       subject matter jurisdiction. The central
                                       question before us on the merits is whether
  JOHN ASHCROFT, ATTORNEY
                                       we may review a final order of the BIA
GENERAL OF THE UNITED STATES
                                       based on two alternative legal grounds
        OF AMERICA,
                                       when we are without jurisdiction to review
                                       the order based on one of those grounds.
                          Respondent
                                       This appeal also gives us the opportunity
                                       to set forth for the first time in a
                                       precedential opinion the standard that we
    Petition for Review of an Order
                                       follow in ruling on a motion for a stay of
 of the Board of Immigration Appeals
                                       removal pending a decision on the Petition
             (A40-387-915)
                                       for Review.


  Sur Motion Submitted Under Third
                                                     Background
  Circuit LAR 34.1(a) May 19, 2004

  Before: SLOVITER, McKEE, and
                                               Douglas entered the United States
      BECKER, Circuit Judges
                                       with a valid visa in 1987. He received
                                       lawful permanent resident status sometime
      (Filed:   July 8, 2004   )
                                       thereafter. Douglas was convicted under
                                       Delaware law in October 2002 for
                                       trafficking of cocaine. In June 2003, the
                                       Department of H omeland S ecurity
                                       (“DHS”) issued a Notice to Appear
     OPINION OF THE COURT
                                       charging Douglas with being subject to
removal from the United States, pursuant                  The IJ, in an oral decision dated
to 8 U.S.C. § 1227 (a)(2)(A)(iii) and              November 20, 2003, found that Douglas’
(a)(2)(B)(i), as an alien convicted of an          “sexual misconduct” conviction under
“aggravated felony” as well as of certain          New York state law did not constitute an
controlled substance offenses. Douglas             “aggravated felony” under the Immigration
admitted to the Delaware conviction                and Naturalization Act (“INA”). Having
during a hearing before an Immigration             determined that the Section 130.20 of the
Judge (“IJ”), who found Douglas to be an           New York Penal Code is a divisible statute
alien subject to removal under §                   that covers both aggravated felony and
1227(a)(2)(B)(i). The IJ, however, ruled           non-aggravated felony offenses as defined
that § 1227(a)(2)(A)(iii) is inapplicable to       by 8 U.S.C. § 1101(a)(43)(A), the IJ ruled
Douglas on the ground that the underlying          that the DHS failed to establish through
Delaware drug conviction did not                   evidence that Douglas’ conviction under
constitute an “aggravated felony” based on         Section 130.20 was pursuant to a portion
our decision in Gerbier v. Holmes, 280             of the section that qualifies as an
F.3d 297 (3d Cir. 2002). IJ’s Op. at 1-2.          “aggravated felony.” IJ’s Op. at 9-11.
Neither Douglas nor the DHS challenged             The IJ also rejected the DHS’s contention
these findings before the BIA or before us         that Douglas’ “sexual misconduct”
here.                                              conviction qualifies as a crime of moral
                                                   turpitude. IJ’s Op. at 10-11. Having thus
       The DHS subsequently amended
the Notice to Appear, charging Douglas
with being subject to removal, again
pursuant to § 1227(a)(2)(A)(iii), as an                  sexual intercourse with
alien convicted of the “aggravated felony”               another person without
of “murder, rape, or sexual abuse of a                   such person’s consent; or
minor” under 8 U.S.C. § 1101(a)(43)(A).                  2. He or she engages in
This charge was based on Douglas’ 1992                   deviate sexual intercourse
conviction under New York State Penal                    with another person
Law Sec tion 130 .20 for “sexual                         without such person’s
misconduct,” a misdemeanor under New                     consent; or
York state law.1                                         3. He or she engages in
                                                         sexual conduct with an
                                                         animal or a dead human
   1
       New York State Penal Law                          body.
Section 130.20, at the time of Douglas’
conviction, states:                                      Sexual misconduct is a class A
       A person is guilty of sexual                misdemeanor.
misconduct when:
                                                   N.Y. Penal Law § 130.20 (McKinney
       1. He or she engages in                     1992).

                                               2
determined that Douglas has not                  DHS, which reflected that Douglas
committed an “aggravated felony,” the IJ         engaged in “nonconsensual sexual
ruled that Douglas was eligible to apply         intercourse with a 14-year-old female”
for cancellation of removal under 8 U.S.C.       victim. BIA’s Op. at 2. It found that
§ 1229b(a).2 The IJ then granted the             because this description of Douglas’
application for cancellation of removal          offense fulfilled the necessary elements for
after she balanced the hardship to Douglas       “sexual abuse of a minor” under 8 U.S.C.
and his family members against his               § 1101(a)(43)(A), as defined by the BIA’s
criminal history.                                decision in Matter of Rodriguez-
                                                 Rodriguez, 22 I. & N. Dec. 991 (BIA
       On appeal, the BIA vacated the IJ’s
                                                 1999), Douglas’ conviction falls within the
decision regarding the “aggravated felony”
                                                 portion of New York Penal Law Section
charge and ordered Douglas’ removal from
                                                 130.20 that qualified as an “aggravated
the United States. The BIA ruled that
                                                 felony” under the INA, which rendered
Douglas’ 1992 “sexual misconduct”
                                                 Douglas ineligible for cancellation of
conviction qualified as an “aggravated
                                                 removal under 8 U.S.C. § 1229b(a).3 The
felony” based on the charging instrument
                                                 BIA therefore ruled that Douglas’
from that conviction, as submitted by the
                                                 “applications for relief from removal are
                                                 pretermitted and [Douglas] is ordered
   2                                             removed to Jamaica.” BIA’s Op. at 3.
       8 U.S.C. § 1229b(a) states:
       (a) Cancellation of removal                          Douglas filed his petition for
       for certain permanent                     review on April 2, 2004, challenging only
       residents.                                the BIA’s ruling with respect to the
       The Attorney General may                  “aggravated felony” issue. He thereafter
       cancel removal in the case                filed an emergency motion on May 4, 2004
       of an alien who is                        to stay his removal pending our review of
       inadmissible or deportable                his petition.          The Attorney General
       from the United States if                 responded with a motion to dismiss
       the alien –                               Douglas’ petition based on our lack of
       (1) has been an alien                     j u r is d i c ti o n u n d e r 8 U .S.C . §
       lawfully admitted for
       permanent residence for
                                                    3
       not less than 5 years,                            The BIA also found that Douglas’
       (2) has resided in the                    2002 Delaware controlled substance
       United States continuously                conviction “render[ed] him ineligible for
       for 7 years after having                  a waiver under former section 212(c) of
       been admitted in any status,              the [INA], 8 U.S.C. § 1182(c), despite
       and                                       INS v. St. Cyr, 533 U.S. 289 (2001) . . .
       (3) has not been convicted                .” Douglas raises no issue with respect
       of any aggravated felony.                 to that portion of the BIA’s decision.

                                             3
1252(a)(2)(C), 4 to review the BIA’s order       preliminary injunction in examining
of removal against Douglas due to the IJ’s       requests for a stay of removal. Under the
finding that Douglas’ Delaware drug              preliminary injunction s tand ard, a
offense conviction qualified as a                petitioner requesting a stay of removal
controlled substance offense under 8             must demonstrate (1) a likelihood of
U.S.C. § 1227(a)(2)(B)(i). We granted            success on the merits of the underlying
Douglas’ motion to stay removal so that          petition; (2) that irreparable harm would
we would have an opportunity to consider         occur if a stay is not granted; (3) that the
the legal issue with respect to our              potential harm to the moving party
jurisdiction, but we will now dismiss            outweighs the harm to the opposing party
Douglas’ petition for review for lack of         if a stay is not granted; and (4) that the
subject matter jurisdiction.                     granting of the stay would serve the public
                                                 interest. Arevalo v. Ashcroft, 344 F.3d 1,
                                                 7-8 (1st Cir. 2003); Mohammed v. Reno,
                 Discussion                      309 F.3d 95, 100 (2d Cir. 2002); Bejjani v.
                                                 INS, 271 F.3d 670, 688-89 (6th Cir. 2001).
                                                 The Ninth Circuit applies a two-pronged
A.       Douglas’ Motion for Stay of             standard of review that provides that a stay
         Removal                                 of removal should be granted when an
                                                 alien shows “either (1) a probability of
      As we noted above, we have not
                                                 success on the merits and the possibility of
previously addressed the standard of
                                                 irreparable injury, or (2) that serious legal
review for assessing a motion to stay
                                                 questions are raised and the balance of
removal of an alien pending judicial
                                                 hardships tips sharply in the petitioner’s
review. Most courts of appeals, however,
                                                 favor.” Andreiu v. Ashcroft, 253 F.3d 477,
have applied the standard for granting a
                                                 483 (9th Cir. 2001) (en banc) (quoting
                                                 Abbassi v. INS, 143 F.3d 513, 514 (9th
     4                                           Cir. 1998)). This standard collapses the
         8 U.S.C. § 1252(a)(2)(C) states:
                                                 traditional four-prong test. For the sake of
         Notwithstanding any other
                                                 providing both linguistic and analytic
         provision of law, no court
                                                 clarity, we adhere to the traditional four-
         shall have jurisdiction to
                                                 part framework for the preliminary
         review any final order of
                                                 injunction standard.
         removal against an alien
         who is removable by                            The Court of Appeals for the
         reason of having                        Eleventh Circuit, however, applies a more
         committed a criminal                    stringent standard that requires petitioners
         offense covered in section              to produce “clear and convincing
         1182(a)(2) or                           evidence” that the execution of the
         1227(a)(2)(A)(iii), (B), (C),           removal order is prohibited by law. Weng
         or (D) of this title . . . .

                                             4
v. United States Att’y Gen., 287 F.3d              Circuit that the “clear and convincing
1335, 1337 (11th Cir. 2002). That court            evidence” standard is inapplicable to
based its holding on the language of 8             motions to stay removal pending judicial
U.S.C. § 1252(f)(2), which prohibits courts        review of the underlying petition. See
from enjoining the removal of any alien            Andreiu, 253 F.3d at 480-83. As 8 U.S.C.
pursuant to a final order “unless the alien        § 1252(b)(3)(B), which in effect requires
shows by clear and convincing evidence             petitioners subject to a removal order to
that the entry or execution of such order is       affirmatively seek a stay of removal from
prohibited as a matter of law.” Weng, 287          the reviewing court, provides no standard
F.3d at 1338. But see Bonhomme-Ardouin             for reviewing such motions to stay
v. United States Att’y Gen., 291 F.3d              removal, we will apply the traditional
1289, 1290-91 (11th Cir. 2002) (Barkett,           standard for reviewing a motion to stay an
J., joined by Wilson, J., concurring)              administrative agency order pending
(stating that “Weng applied the wrong              judicial review of the underlying petition
standard for a motion for temporary stay of        or appeal – the preliminary injunction
deportation pending appeal” and urging             standard.5
the court to reconsider the issue en banc).
See generally Kenyeres v. Ashcroft, 538
U.S. 1301, 1303-05 (2003) (discussing              B.       Douglas’ Petition for Review and
differing standards applied by various                      the Attorney General’s Motion to
Courts of Appeals but declining to decide                   Dismiss for Lack of Jurisdiction
the issue).
       We now join the First, Second, and
                                                          In the usual case, we would turn to
Sixth Circuits in holding that the proper
                                                   application of the four-part test for a stay
standard of review for motions to stay
removal is the traditional four-part test
used for adjudicating motions for
                                                        5
preliminary injunction, as we set forth                    We realize that the threshold for
above. The opinions in Mohammed, 309               meeting the “likelihood of success on the
F.3d at 99-100, and in Arevalo, 344 F.3d           merits” requirement is somewhat vague
at 7-9, both set forth clear multi-level           and open to various interpretations.
analyses of why 8 U.S.C. § 1252(f)(2)              Were we to reach the issue in this case, it
applies only to permanent prohibitions of          would be relevant that the IJ and the BIA
removal and not to motions to stay the             differed in their rulings with respect to
execution of a removal order, and we are           Douglas’ 1992 sexual misconduct
persuaded by the reasoning in those                conviction as an aggravated felony, and
opinions to reject the Eleventh Circuit’s          this court had not previously reviewed
“clear and convincing evidence”                    this issue. In view of our decision on
requirement. We also agree with the Ninth          jurisdiction, this is not the appropriate
                                                   case to analyze that issue.

                                               5
of removal discussed above, starting with            under 8 U.S.C. § 1252(a)(2)(C), we have
Douglas’ likelihood of success on his                no jurisdiction to review Douglas’ petition
petition for review of the BIA’s ruling on           for review because of Douglas’ controlled
the aggravated felony issue.         Here,           substance conviction, even though
however, we must first address the                   Douglas’ petition challenges only the
Attorney General’s motion to dismiss                 BIA’s determination that the 1992 “sexual
Douglas’ petition due to lack of subject             misconduct” conviction qualifies as an
matter jurisdiction because each court               “aggravated felony” under the INA.
must first satisfy itself of its own                 However, we have jurisdiction pursuant to
jurisdiction. United States v. Touby, 909            8 U.S.C. § 1252(a)(1) and (b) “to
F.2d 759, 763 (3d Cir. 1990).                        determine our jurisdiction under [8 U.S.C.]
                                                     § 1252(a)(2)(C).” Drakes v. Zimski, 240
        The BIA vacated only the portion of
                                                     F.3d 246, 247 (3d Cir. 2001).
the IJ’s decision holding that Douglas’
1992 New York sexual misconduct                               We have previously noted the
conviction was not an “aggravated felony”            jurisdictional question of reviewing one of
and that Douglas was therefore eligible for          two alternative reasons supporting a final
cancellation of removal; the BIA did not             order of removal when the other reason,
review the IJ’s decision regarding                   which is not challenged by the petitioning
Douglas’ 2002 Delaware controlled                    party, deprives us of jurisdiction to review
substance conviction, which also rendered            the same order of removal. In Nugent v.
Douglas subject to removal under the INA.            Ashcroft, 367 F.3d 162 (3d Cir. 2004), we
Douglas, in fact, did not challenge before           framed the question in the following
the BIA or here the IJ’s finding that he is          manner: “If we do not have jurisdiction to
removable from the United States on the              review the order based on one of the
ground of his Delaware drug conviction.              reasons . . . what authority do we have to
Undoubtedly, Douglas follows that course             review another reason supporting the order
because he would be qualified to seek the            . . . ?” Id. at 166-67. We did not have to
discretionary relief of cancellation of              address that question in Nugent, however,
removal if he is found removable only on             because the petitioner in that case had also
the controlled substance conviction but not          filed a petition for a writ of habeas corpus
if he has a prior conviction that qualifies as       under 28 U.S.C. § 2241 challenging the
an “aggravated felony.” 8 U.S.C. §                   BIA’s ruling on the same grounds as that
1229b(a). The scope of our review,                   in his original petition for review in a
therefore, includes both the BIA’s decision          petition. The subsequent consolidation of
and the portion of the IJ’s decision that            the original petition for review and the
was left unchallenged in front of the BIA.           habeas corpus petition allowed us to
See Xie v. Ashcroft, 359 F.3d 239, 242 (3d           address the merit of Nugent’s argument in
Cir. 2004).                                          our review of the habeas corpus petition.
                                                     Because Douglas has not filed a habeas
       The Attorney General contends that

                                                 6
corpus petition addressing the same                        We therefore hold that we have no
argument he has presented in his petition           jurisdiction to review the BIA’s order of
for review here, the jurisdictional                 removal under 8 U.S.C. § 1252(a)(2)(C)
argument is now properly before us.
       Section 1252(a)(2)(C) provides that
no court has jurisdiction to review “any            the same jurisdictional issue. It also
final order of removal” against an alien            concluded that it had no jurisdiction to
who is found removable for having                   review an alien’s petition to review a
committed a criminal offense covered by,            final order of removal based on the
among others, 8 U.S.C. § 1227(a)(2)(B).             alien’s uncontested controlled substance
T h e pla i n lang uage of se ctio n                convictions, reasoning:
1252(a)(2)(C) deprives us of jurisdiction to                Although the order of
review a final removal “order” from the                     removal cites two bases for
BIA rather than the ground on which the                     removal – i.e., Flores’s
removal order was based.            This is                 1991 and 1996 marijuana
consistent with the INA’s overall structure                 convictions and Flores’s
of allowing for “[j]udicial review of a final               1972 burglary conviction –
order of removal,” 8 U.S.C. § 1252(a)(1),                   there is only one “order” to
rather than particular reasons supporting                   be reviewed. Once we
such order. See also § 1252(b), (d), (g).                   determine that the order of
Indeed, if we reject the BI A’s                             removal before us is based
determination that Douglas’ 1992                            independently on Flores’s
conviction of sexual misconduct qualifies                   controlled substance
as an “aggravated felony,” the BIA’s final                  offenses covered by 8
order of removal remains intact based on                    U.S.C. § 1227(a)(2)(B), the
Douglas’ 2002 drug conviction; the BIA’s                    jurisdiction-stripping
order of removal stand s on th e                            provisions of § 1252
independent basis of the other reason                       clearly apply, and it does
which is not subject to judicial review                     not matter for the purposes
under the INA. Therefore Douglas, having                    of determining the scope of
conceded his removability from the United                   our jurisdiction under §
States based on the 2002 conviction, does                   1252(a)(2)(C) that the
not actually petition us to review a “final                 order of removal is also
order of removal” which is, based on his                    based on an aggravated
concession, not subject to judicial review.6                felony conviction that
                                                            Flores argues is not
                                                            actually covered by 8
   6
       In Flores-Garza v. INS, 328 F.3d                     U.S.C. § 1227(a)(2)(A)(iii).
797, 802 (5th Cir. 2003), the Court of
Appeals in the Fifth Circuit confronted             Id. (emphasis in original).

                                                7
based on his 2002 Delaware controlled
substance conviction, and we will grant the
Attorney General’s motion to dismiss. We
emphasize, however, that our decision
does not foreclose Douglas of the
opportunity to seek judicial review of the
substantive arguments contained in his
petition for review through a petition for
habeas corpus filed in an appropriate
district court pursuant to 28 U.S.C. § 2241.
See Nugent, 367 F.3d at 166-67. In light
of our decision, we will vacate the stay of
removal that we entered as an expediency
so that we could consider the jurisdictional
issue raised by the Attorney General.


               Conclusion


       For the foregoing reason, we will
grant the Attorney General’s motion to
dismiss for lack of jurisdiction and dismiss
Douglas’ petition for review.




                                               8
