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


12-20-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3244




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                                                       NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                              ________________

                                     No. 05-3244
                                  ________________

                                 WILFRED HAYNES,

                                                Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES,

                                             Respondent
                                  ________________

                       On Petition for Review of a Decision of
                          the Board of Immigration Appeals
                        Immigration Judge Walter A. Durling
                              (Agency No. A38 123 630)
                                  ________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  October 25, 2006

                Before: RENDELL, AMBRO and ROTH, Circuit Judges

                               (Filed December 20, 2006)

                                  ________________

                                      OPINION
                                  ________________

PER CURIAM

      Wilfred Haynes, a native and citizen of Barbados, petitions for review of a final

order of removal. For the reasons set forth below, we will grant the Government’s
motion to dismiss the petition for review for lack of jurisdiction.

       Haynes entered the United States in 1983. It appears that he initially came here in

1980 and became a lawful permanent resident after he married a United States citizen. In

1995, an order to show cause was issued charging him with deportability based upon his

convictions in 1984 in New York state court for criminal possession of marijuana in the

second degree and criminal possession of a weapon in the third degree. In 1996, an

Immigration Judge ordered Haynes’ deportation in absentia. In 2003, an Immigration

Judge granted Haynes’ motion to reopen the immigration proceedings. Haynes argued

that he recently learned of the deportation order, and that reopening was warranted so that

he could apply for a waiver of deportation under former § 212(c) of the Immigration and

Nationality Act, 8 U.S.C. § 1182(c) (repealed), as permitted by INS v. St. Cyr, 533 U.S.

289 (2001).

       In 2004, an Immigration Judge held a hearing on the merits of Haynes’ request for

relief from removal. The Immigration Judge considered Haynes’ extensive criminal

history in the United States, which included felony and misdemeanor convictions

spanning from 1984 through 2002, his family ties, and the number of years he had lived

here. The Immigration Judge decided, as a matter of discretion, that a waiver of

deportation under § 212(c), and cancellation of removal under 8 U.S.C. 1229b, were not

warranted. The Immigration Judge noted that a § 212(c) waiver was not available for

Haynes’ weapons offense.

       The Immigration Judge told Haynes that he had a right to appeal the decision.

                                              2
Although Haynes replied that he did not wish to appeal, he then filed an appeal with the

Board of Immigration Appeals (“BIA”). Shortly thereafter, Haynes wrote a letter to the

BIA and stated that he wished to withdraw his appeal. The BIA issued an order stating

that it had been advised that Haynes’ appeal had been withdrawn, and there was nothing

pending before it.

       Haynes then filed a motion to reopen the proceedings and stated that he wanted to

pursue an appeal. He explained that he withdrew his appeal when he was tired and in

disagreement with his family. In a separate filing, Haynes stated that he withdrew his

appeal to spare his family further injury. The BIA denied the motion, explaining that

Haynes had not shown that the withdrawal of his appeal was not knowing and intelligent,

and that he had not demonstrated a basis for reopening the proceedings.

       Haynes then filed a petition for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2241 in District Court challenging his final order of removal. The District Court

transferred the petition to this Court pursuant to Section 106(c) of the Real ID Act to be

treated as a petition for review.1 The Government moves to dismiss the petition for

review for lack of jurisdiction. Haynes did not respond to the Government’s motion.

       The Government correctly argues that the Court lacks jurisdiction to review

Haynes’ removal order because he did not exhaust his administrative remedies. See 8

  1
    Although the Government began deportation proceedings before April 1, 1997, the
transitional rules in the Illegal Immigration Reform and Immigrant Responsibility Act of
1996 do not apply. A transitional rules case is treated as if it had been filed as a petition
for review under 8 U.S.C. § 1252, as amended by the Real ID Act. See Real ID Act,
Section 106(d).

                                              3
U.S.C. § 1252(d)(1) (providing that a court may review a final order of removal only if

the alien has exhausted all available administrative remedies); Duvall v. Elwood, 336

F.3d 228, 232-33 (3d Cir. 2003) (holding that the exhaustion requirement is

jurisdictional). To exhaust his administrative remedies, Haynes was required to file an

appeal to the BIA. See Bonhometre v. Gonzales, 414 F.3d 442, 447-48 (3d Cir. 2005)

(discussing exhaustion requirement).

       Although Haynes filed an appeal to the BIA, he then wrote the BIA a letter and

stated that he wished to withdraw the appeal. The administrative record does not suggest

that Haynes took this step unknowingly. The BIA rejected Haynes’ later attempt to

pursue his appeal after he changed his mind again. Because Haynes did not exhaust his

administrative remedies, we lack jurisdiction to review the final order of removal.

       Accordingly, we will dismiss the petition for review for lack of jurisdiction.2




  2
    Because we conclude that we lack jurisdiction to review the final order of removal on
this basis, we need not address the other grounds for dismissal asserted by the
Government in its motion to dismiss. To the extent Haynes’ habeas petition may be
construed as seeking review of the BIA’s decision denying his latest motion to reopen the
proceedings, Haynes has not shown that the BIA abused its discretion.

                                             4
