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


5-18-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3628




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"Davis v. Atty Gen USA" (2006). 2006 Decisions. Paper 1086.
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CPS-211                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                   NO. 05-3628
                                ________________

                               KEITHROY DAVIS,

                                         Petitioner

                                         v.

                           ATTORNEY GENERAL OF
                            THE UNITED STATES,

                                         Respondent

                     ____________________________________

                         On a Petition for Review of an Order
                         of the Board of Immigration Appeals
                              (Agency No. A35 219 643)
                         Immigration Judge Grace A. Sease
                    _______________________________________

Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                 April 27, 2006

          Before:     BARRY, SMITH AND NYGAARD, Circuit Judges.

                               (Filed: May 18, 2006)


                            _______________________

                                    OPINION
                            _______________________

PER CURIAM
       Keithroy Davis petitions for review of an order of the Board of Immigration

Appeals (“BIA”) which dismissed his administrative appeal as untimely. For the reasons

that follow, we will dismiss the petition for review.

       Davis is a native and citizen of St. Christopher-Nevis. He came to the United

States in 1979 as a lawful permanent resident. In 1985, Davis was convicted in the

District Court for the Virgin Islands, having pleaded guilty to attempted grand larceny

and possession of stolen property. In 2001, Davis was convicted in the United States

District Court for the Southern District of New York, having pleaded guilty in 2000 to

receipt and possession of stolen mail (twenty-one stolen United States Treasury checks

totaling approximately $10,417) in violation of 18 U.S.C. § 1708. Davis received a

sentence of eighteen months imprisonment, followed by three years of supervised release.

       Based on the 2001 conviction, Davis was charged as being removable for having

been convicted of an aggravated felony as defined in Immigration and Nationality Act

(“INA”) § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G) (“a theft offense (including receipt

of stolen property) . . . for which the term of imprisonment [is] at least one year”). Davis

filed an application for a waiver of removal under former INA § 212(c) and for

cancellation of removal under INA § 240A, 8 U.S.C. § 1229b(a). The Immigration Judge

(“IJ”) found that Davis’s 2001 conviction constituted an aggravated felony, thus

rendering him ineligible for cancellation of removal under section 240A. Further, the IJ

found that, even if Davis’s earlier convictions were amenable to waiver of removal under

former section 212(c), section 212(c) would offer incomplete relief. The IJ ordered

                                              2
Davis’s deportation to St. Christopher-Nevis. Davis then filed a pro se appeal to the

Board of Immigration Appeals (“BIA”). Citing 8 C.F.R. §§ 1003.38(b) & (c), the BIA

dismissed the appeal because it was filed one day late.

       Davis filed a pro se habeas petition in District Court seeking a stay of removal and

challenging the order of removal and the validity of his detention. The District Court

stayed Davis’s deportation. Subsequently, the District Court transferred the petition to

this Court under the Real ID Act, insofar as it challenged the final order of removal.1

Davis has filed a motion for appointment of counsel and a supplement in support thereof.

       A court of appeals may review a final order of removal only if an alien has

exhausted all administrative remedies. 8 U.S.C. § 1252(d)(1). The requirement of

administrative exhaustion is jurisdictional; when a party in removal proceedings fails to

exhaust his administrative remedies, the court lacks power to act. See Bejar v. Ashcroft,

324 F.3d 127, 132 (3d Cir. 2003). Davis did not bring a timely appeal before the BIA.

Accordingly, he has failed to exhaust his administrative remedies. This failure bars

judicial review of Davis’s removal claims, whether presented in a habeas petition or a

petition for review. See Duvall v. Elwood, 336 F.3d 228, 231 n.5 & 232 (3d Cir. 2003)

(habeas petition); Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003)

(petition for review).



       1
        The District Court retained jurisdiction over the portion of the habeas petition
challenging Davis’s continued custody, and conditionally granted habeas relief on
October 11, 2005.

                                             3
      We will summarily dismiss the petition for review. Davis’s motion for

appointment of counsel is denied as moot.
