                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-8-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3295




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"Daley v. Atty Gen USA" (2008). 2008 Decisions. Paper 1785.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1785


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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 07-3295
                                     ___________

                                DEON EARL DALEY,
                                            Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES

                      ____________________________________

                          On Petition for Review of an Order
                         of the Board of Immigration Appeals
                               Agency No. A37 777 858
                         Immigration Judge: Robert P. Owens
                      ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  January 2, 2008
                Before: SLOVITER, BARRY and WEIS, Circuit Judges

                            (Opinion filed: January 8, 2008)
                                    ___________

                                      OPINION
                                     ___________

PER CURIAM

      Deon Earl Daley petitions for review of an order of the Board of Immigration

Appeals (BIA), which dismissed his appeal of an Immigration Judge’s (IJ’s) final

removal order. We will deny the petition.
       Daley is a native and citizen of Jamaica. He entered the U.S. at the age of 8, in

1982. He has several convictions, including a conviction in 1999 for criminal possession

of a weapon. In removal proceedings, he applied for cancellation of removal, and argued

that none of his convictions were valid. The Immigration Judge (IJ) determined that he

was potentially eligible for cancellation, but denied relief as a matter of discretion,

finding that Daley’s convictions outweighed the positive factors. On appeal, the Board of

Immigration Appeals (BIA) agreed with the IJ that relief was not warranted in the

exercise of discretion.

       We have jurisdiction to review “constitutional claims or questions of law” raised in

this petition for review. INA § 242(a)(2)(D) [8 U.S.C. § 1252(a)(2)(D)]. However,

pursuant to 8 U.S.C. § 1252(a)(2)(B), courts lack jurisdiction to review “any judgment

regarding the granting of relief under section . . . 1229b . . . .” This Court has held that in

reviewing decisions to deny cancellation of removal under § 1229b, the court retains

jurisdiction to review nondiscretionary factors, but lacks jurisdiction to review

discretionary decisions. Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 178 (3d Cir.

2003). As cancellation here was denied purely on a discretionary basis, we cannot review

the decision.

       Daley’s brief mentions “due process” and “equal protection,” but it is difficult to

discern what his claims are in this regard. From what we can understand, it appears that

Daley is complaining that he was found to be removable on the basis of convictions that


                                               2
he believes are not valid. We do not reach the merits of his claims, as a final conviction

cannot be challenged in removal proceedings. See Vargas v. Department Of Homeland

Security, 451 F.3d 1105, 1107 (10 th Cir. 2006); Giammario v. Hurney, 311 F.2d 285, 287

(3d Cir. 1962); cf. Drakes v. INS, 330 F.3d 600, 606 (3d Cir.2003) (alien may not

constitutionally challenge state court conviction in § 2241 petition).1

       To the extent Daley challenges his continued detention, that challenge would be

properly brought in a habeas petition filed in District Court. Nnadika v. Attorney

General, 484 F.3d 626, 632 (3d Cir. 2007). As Daley does not raise any other legal or

constitutional issue that this court could review, we will deny the petition.




   1
    For this reason, Daley’s “Motion to Vacate Judgment” is denied. Daley’s “Motion to
reconsider, vacate and modify the disposition Docket Number 99K076686,” is likewise
denied.
