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


9-21-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1305




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                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                               NOS. 05-1305 & 05-3129
                                 ________________

                            CHARLES ISAAC RICHARDS,
                                               Appellant,

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES
                    ____________________________________

                            On Petition for Review of an Order
                           of the Board of Immigration Appeals
                                (Agency No. A 29-356-677)
         (05-1305 initially docketed as an appeal from MDPA No. 04-cv-02682)
       (05-3129 initially docketed as a habeas petition at EDPA No. 05-cv-01592
                  and transferred pursuant to the Real ID Act of 2005)
                             __________________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  August 12, 2005

                 Before: ALITO, SMITH and COWEN, Circuit Judges

                               (Filed September 21, 2005)
                                  _________________

                                      OPINION
                                  _________________

PER CURIAM

      Appellant Charles Isaac Richards, a native and citizen of Jamaica, was illegally

present in the United States when, in October 2001, he pleaded guilty in the Allegheny

County Court of Common Pleas to possession of cocaine in violation of 35 Pa. Cons. Stat.
Ann. § 780-113(a)(16), and possession of a small amount of marijuana in violation of 35

Pa. Cons. Stat. Ann. § 780-113(a)(31). Richards was sentenced to probation without

verdict for 13 months pursuant to 35 Pa. Cons. Stat. Ann. § 780-117.

        As a result of his convictions, the Bureau of Immigration and Customs

Enforcement charged Richards with removability under Immigration & Nationality Act §

212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present without being admitted

or paroled, and § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II), as an alien

convicted of a controlled substance violation. An Immigration Judge found Richards

removable as charged, and ordered him removed to Canada, and should Canada fail to

accept him, to Jamaica. The IJ also denied his applications for asylum, withholding of

removal, and protection under the Convention Against Torture.

        On November 23, 2004, the Board of Immigration Appeals affirmed.1 On

December 13, 2004, Richards filed a petition for writ of habeas corpus under 28 U.S.C. §

2241 in the United States District Court for the Middle District of Pennsylvania. See

Richards v. District Director of I.C.E., D.C. Civ. No. 04-cv-02682. In it he claimed that

he could not be removed on the basis of his sentence to probation without verdict,

because this disposition does not satisfy the definition of “conviction” under federal

immigration law, his offenses were not aggravated felonies, and he was entitled to a

waiver under INA § 212(h), 8 U.S.C. § 1182(h). The District Court dismissed the petition



  1
      Due to a defect in service, the decision was reissued on March 25, 2005.

                                              2
after fully considering Richards’ arguments on the merits, and, on January 29, 2005,

Richards appealed to this Court at C.A. No. 05-1305.

       Meanwhile, on April 7, 2005, and while the appeal from Richards’ December 2004

habeas petition was pending here, Richards filed another habeas petition under 28 U.S.C.

§ 2241, this time in United States District Court for the Eastern District of Pennsylvania,

in which he raised the same issues. See Richards v. District Director for I.C.E., D.C. Civ.

No. 05-cv-01592. The government initially submitted an answer to the petition, arguing

that it was duplicative of the December 2004 petition, which had been fully considered

and denied on the merits. A week later, however, the government moved to transfer the

petition to this Court pursuant to the newly enacted Real ID Act of 2005, § 106(c), Pub.

L. No. 109-13, Div. B, 119 Stat. 231 (May 11, 2005). The District Court granted the

motion and transferred the case, now docketed at C.A. No. 05-3129.

       Initially, we address whether transfer of the April 2005 petition was appropriate,

and thus whether the appeal docketed at No. 05-3129 is properly before us, and we

conclude that it was, and is. The Real ID Act amended the judicial review statute of the

Immigration and Nationality Act to strip district courts of jurisdiction over habeas

petitions filed by criminal aliens such as Richards, seeking review of final orders of

removal. 8 U.S.C. § 1252(a)(2)(C) (May 11, 2005). Jurisdiction over final orders of

removal now lies exclusively in the courts of appeals pursuant to a petition for review. 8

U.S.C. § 1252(a)(1) and (5). The Act, in section 106(c), also provided for transfer of



                                             3
habeas petitions currently pending in the district courts to the courts of appeals, and

further provided that the mandatory and jurisdictional 30 day time period for filing a

petition for review, 8 U.S.C. § 1252(b)(1), shall not apply to transferred cases. Insofar as

Richards was found removable under INA § 212(a)(2)(A)(i)(II), 8 U.S.C. §

1182(a)(2)(A)(i)(II), as an alien convicted of a controlled substance violation, and had

filed a habeas petition instead of a petition for review which was pending in the District

Court when the Act went into effect, transfer under the Real ID Act was required.

       Next we consider whether the Real ID Act extends to pending appeals from an

order denying a habeas petition, and thus whether the appeal docketed at No. 05-1305

should be treated as a petition for review. We conclude that it should be. In Bonhometre

v. Gonzales, — F.3d —, 2005 WL 1653641 (3d Cir. July 15, 2005), we held that those

appeals from the denial of a habeas petition that were pending before this Court on the

effective date of the Real ID Act are properly converted to petitions for review. Because

Richards’ habeas petitions raise identical issues, we now have what is in effect a single

petition for review. Bonhometre, 2005 WL 1653641, at *2 (in Real ID Act Congress

sought to streamline piecemeal review of orders of removal).

       The judicial review statute, after passage of the Real ID Act, still provides that

courts of appeals lack jurisdiction over a petition for review filed by an alien convicted of

a controlled substance violation. 8 U.S.C. § 1252(a)(2)(C); 8 U.S.C. §

1182(a)(2)(A)(i)(II). Richards’ October 2001 conviction for possession of cocaine is a



                                              4
violation of a State law relating to a controlled substance. Pennsylvania’s statute

criminalizing possession of cocaine, 35 Pa. Cons. Stat. Ann. § 780-113(a)(16) (West

Supp. 2005), by its own terms relates to a controlled substance.

       However, the Real ID Act has clarified that we may exercise jurisdiction over

constitutional claims or questions of law raised by a criminal alien in a petition for

review. See Tran v. Gonzales, — F.3d —, 2005 WL 1620320 (3d Cir. July 12, 2005)

(citing 8 U.S.C. § 1252(a)(2)(D)). Richards’ statutory arguments that his sentence to

probation without verdict does not satisfy the definition of “conviction” under federal

immigration law, his offenses were not aggravated felonies, and he was entitled to a

section 212(h) waiver are questions of law that we may review. See also Papageorgiou v.

Gonzales, — F.3d —, 2005 WL 1490454, at *2 (3d Cir. June 24, 2005). We review

Richard’s claims de novo. Tran, 2005 WL 1620320, at *3.

       We will deny the consolidated petition for review. In Acosta v. Ashcroft, 341 F.3d

218 (3d Cir. 2003), the alien pleaded no contest to a charge of possession of heroin in

violation of 35 Pa. Cons. Stat. Ann. § 780-113(a). Like Richards, he was sentenced to

probation without verdict. He completed probation and the charges against him were

dismissed pursuant to 35 Pa. Cons. Stat. Ann. § 780-117, just as they were against

Richards. The alien argued, in reliance on Pennsylvania law, 35 Pa. Cons. Stat. Ann. §

780-117, and the Federal First Time Offenders Act (“FFOA”), 18 U.S.C. § 3607, that the

dismissal constituted an exception to the INA’s definition of a conviction.



                                              5
       We held that the term “conviction” as defined in 8 U.S.C. § 1101(48)(a)(A)

encompasses the sentence of probation without verdict. Where no formal judgment of

guilt has been entered by a court, an alien is considered to have been convicted if the

disposition of the alien's criminal proceeding satisfies a two part test:

       (i) a judge or jury has found the alien guilty or the alien has entered a plea
       of guilty or nolo contendere or has admitted sufficient facts to warrant a
       finding of guilt; and (ii) the judge has ordered some form of punishment,
       penalty, or restraint on the alien's liberty to be imposed.

8 U.S.C. § 1101(a)(48)(A). The statute unambiguously points to the conclusion that the

disposition of Richards’ criminal case in the Court of Common Pleas constitutes a

conviction. Acosta, 341 F.3d at 222.

       Although Section 17 of the Pennsylvania Controlled Substance Act provides that,

upon completion of probation without verdict, the court shall discharge the person and

dismiss the proceedings, and the discharge and dismissal shall not constitute a conviction

for any purpose under Pennsylvania law, 35 Pa. Cons. Stat. Ann. § 780-117, the

Pennsylvania Legislature cannot determine how the term "conviction" is to be construed

under federal law. Acosta, 341 F.3d at 223. In addition, even though we may assume

that an exception to the INA’s definition of “conviction” exists for an alien who receives

probation without conviction under FFOA, the Board of Immigration Appeals’ present

interpretation that state law charges of simple possession of a controlled substance that

have been dismissed are a conviction for purposes of section 1101(a)(48)(A) is entitled to

deference. Id. at 225.

                                               6
       Furthermore, equal protection does not mandate the same treatment for aliens

charged in state court, because there is a rational basis for distinguishing between aliens

whose criminal cases are dismissed under the federal FFOA and those whose charges are

handled under similar state schemes. “Congress could have worried that state criminal

justice systems, under the pressure created by heavy case loads, might permit dangerous

offenders to plead down to simple possession charges and take advantage of those state

schemes to escape what is considered a conviction under state law.” Id. at 227.

       Richards cites to cases from other circuits which he feels support his argument, but

Acosta is the law in this circuit. In addition, Richards was not found removable on the

basis of an aggravated felony, and, thus, we need not address whether his controlled

substance violation is a drug trafficking offense, see generally Steele v. Blackman, 236

F.3d 130, 135 (3d Cir. 2001) (concept of trading or dealing excludes simple possession or

transfer without consideration). Finally, Richards is not eligible for a section 212(h)

waiver, because he pleaded guilty to possession of cocaine and the waiver he seeks

applies to “a single offense of simple possession of 30 grams or less of marijuana,” 8

U.S.C. § 1182(h). Even if Richards could show that extreme hardship would result from

his removal, he is still ineligible for a section 212(h) waiver.2

       We will deny the consolidated petition for review.

  2
    In his informal brief, Richards appears to argue that he is entitled to adjust his status
because of his marriage to a United States citizen. However, on March 24, 2005, the
District Director of the U.S. Citizenship and Immigration Services concluded that his
wife’s I-130 Petition for Alien Relative had been deemed abandoned.

                                               7
