                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-29-2007

St. Hill v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4191




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                                                                NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                    _______________

                                      No. 04-4191
                                    _______________

                                  SIDNEY ST. HILL,

                                            Appellant,

                                            v.

                  ALBERTO GONZALES, ATTORNEY GENERAL
                       OF THE UNITED STATES;* BICE.

                                    _______________

                    On Appeal From the United States District Court
                        for the Middle District of Pennsylvania
                                   (No. 03-cv-01315)
                      District Judge: Honorable Edwin M. Kosik


                                Argued January 22, 2007

      Before: SCIRICA, Chief Judge, FUENTES and CHAGARES, Circuit Judges.


                                 (Filed March 29, 2007)




       *
        Because we convert St. Hill’s present appeal into a petition for review, we are
required to substitute the Attorney General of the United States. 8 U.S.C. §
1252(b)(3)(A).
Alison C. Finnegan, Esq. (Argued)
Deena Jo Schneider, Esq.
Jessica W. Troiano, Esq.
Schnader, Harrison Segal & Lewis LLP
Suite 3600, 1600 Market Street
Philadelphia, PA 19103

Counsel for Petitioner

Daryl F. Bloom, Esq., Assistant U.S. Attorney (Argued)
Thomas A. Marino, Esq., U.S. Attorney
United States Attorney’s Office
Middle District of Pennsylvania
228 Walnut Street, Suite 220
Harrisburg, PA 17108

Counsel for Respondents
                                ________________________

                                OPINION OF THE COURT
                               _________________________


CHAGARES, Circuit Judge.

        Before the Court is Sidney St. Hill’s (“St. Hill”) appeal of the denial of his petition

for writ of habeas corpus challenging his final order of removal, and the Government’s

motion to transfer venue to the United States Court of Appeals for the Second Circuit.

For the reasons expressed below, we will grant the motion to transfer. We decline to

address the substantive aspects of St. Hill’s appeal, leaving that for the proper judicial

body.

                                               I.

        St. Hill is a native and citizen of Guyana who has lived in the United States as a

                                               2
lawful permanent resident since 1982. Over the next decade, he was convicted of

committing four separate crimes under New York law: to wit, a July 11, 1983 conviction

for possession of a weapon; a January 29, 1984 conviction for unlawful possession of

marijuana pursuant to New York State Penal Law § 221.05, a misdemeanor; a December

10, 1984 conviction for criminal possession of a weapon in the third degree; and a July

22, 1992 conviction for unlawful possession of a controlled substance in the third degree

under New York State Penal Law § 220.16(12), a class B felony.

       On June 11, 1997, based on the 1984 conviction for possession of marijuana and

the 1992 conviction for criminal possession of cocaine, the Immigration and

Naturalization Service 1 (“INS”) commenced removal proceedings against St. Hill. St.

Hill applied for cancellation of removal under Immigration and Nationality Act (“INA”) §

240A, 8 U.S.C. § 1229b(a), and for waiver of removal under INA § 212(c), 8 U.S.C. §

1182(c) (now repealed).

       On March 18, 1998, an Immigration Judge (IJ) in Fishkill, New York, denied St.

Hill’s requests for relief and ordered St. Hill removed from the United States to Guyana.

The IJ concluded that St. Hill’s 1992 conviction was for “a drug trafficking crime” that




       1
        The INS ceased to exist as an agency within the Department of Justice on March
1, 2003, and its enforcement functions were transferred to the Bureau of Immigration and
Customs Enforcement (“BICE”) within the Department of Homeland Security. See
Homeland Security Act, Pub. L. No. 107-296, § 441, 116 Stat. 2135, 2192 (2002). For
the purposes of our discussion, we will continue to use the appellation INS to refer to
BICE.

                                            3
constituted an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(B), and rendered

him ineligible for cancellation of removal.

       The BIA affirmed by decision of July 11, 2001. The BIA reasoned that under the

Controlled Substances Act, 21 U.S.C. § 844(a), a conviction for unlawful possession of a

controlled substance that is committed after a prior drug conviction has become final is

punishable by a term of imprisonment of up to two years and is thus a felony within the

meaning of the Controlled Substances Act.

       On March 8, 2002, St. Hill filed a petition for writ of habeas corpus in United

States District Court for the Eastern District of New York, challenging the order of

removal. In his petition, St. Hill argued that he had not been convicted of an aggravated

felony, and that he was entitled to cancellation of removal under 8 U.S.C. § 1229b(a), or

alternatively, waiver of removal, under § 212(c), formerly 8 U.S.C. § 1182(c). By order

dated November 25, 2002, the District Court vacated the BIA’s final order of removal and

remanded St. Hill’s case to the BIA “for a determination as to whether [St. Hill] is

removable from the United States based on his criminal connections [sic] and if so,

whether petitioner is eligible for any relief from removal.” (A52.) After additional

briefing on these issues, the BIA again denied St. Hill’s appeal by order dated May 6,

2003. In doing so, the BIA reaffirmed its prior decision regarding the aggravated felony.




       In July 2002, St. Hill was released on parole to the custody of the immigration



                                              4
authorities and transferred to Pike County Prison in Lords Valley, Pennsylvania.

Approximately one year later, on August 6, 2003, St. Hill filed a second petition for writ

of habeas corpus, this time in the Middle District of Pennsylvania. The petition

challenged his detention pursuant to the BIA’s final orders of removal dated July 11,

2001 and May 6, 2003.

       In his petition, St. Hill argued that Third Circuit precedents, namely Steele v.

Blackman, 236 F.3d 130 (3d Cir. 2001) and Gerbier v. Holmes, 280 F.3d 297 (3d Cir.

2002), supported his contention that his July 22, 1992 conviction for unlawful possession

of a controlled substance in the third degree under New York State Penal Law §

220.16(12) was not an aggravated felony. The Pennsylvania District Court disagreed.

Applying Second Circuit precedents, the court concluded that although St. Hill’s first

drug conviction constituted merely simple possession and was a misdemeanor under

federal law, the second drug conviction qualified as a drug-trafficking crime and thus an

aggravated felony. By order dated October 21, 2003, the Pennsylvania District Court

denied St. Hill’s habeas petition, and affirmed the BIA.

       On October 23, 2003, St. Hill filed a notice of appeal of the Pennsylvania decision,

albeit mistakenly, in the Court of Appeals for the Second Circuit. The Second Circuit

Court of Appeals treated St. Hill’s notice of appeal as a petition for review from the

BIA’s May 2003 decision. Noting only that St. Hill’s petition was untimely, the Court

dismissed the appeal on August 23, 2004 for lack of jurisdiction. Following the dismissal



                                              5
of his habeas petition, on September 1, 2004, St. Hill filed a new petition for writ of

habeas corpus in the District Court for the Eastern District of New York. In this petition,

St. Hill again argued that the BIA erred in classifying his conviction as an aggravated

felony. The District Court denied St. Hill’s petition on March 30, 2005. St. Hill filed a

notice of appeal on June 2, 2005. His appeal to the Court of Appeals for the Second

Circuit has been stayed pending our decision here.

       On October 25, 2004, St. Hill participated in a telephone conference with the

District Court for the Eastern District of New York and counsel for the Government,

during which it became clear that St. Hill mistakenly filed his appeal from the October 21,

2003 decision of the Middle District of Pennsylvania in the Court of Appeals for the

Second Circuit. Thereafter, on October 28, 2004, St. Hill filed a notice of appeal in

Pennsylvania, in which he requested an extension of time pursuant to F. R. A PP. P. 4(a).

By order dated November 2, 2004, the Pennsylvania District Court granted St. Hill’s

motion for an extension of time, permitting him to file his appeal nunc pro tunc.2

                                             II.

       Our jurisdiction over this matter is a threshold issue. Prior to May 11, 2005, an



       2
         St. Hill submitted an informal brief pro se on January 21, 2005; the Government
responded on March 22, 2005 and St. Hill filed a timely reply on March 29, 2005. The
case was calendared before a merits panel on May 24, 2005. However, on October 20,
2005, this Court appointed counsel for St. Hill. Counsel for St. Hill was accorded a new
briefing schedule.
       We take this opportunity to express our gratitude for appointed counsel’s
exemplary representation of St. Hill in this case.

                                              6
alien could challenge an order of removal in a petition for writ of habeas corpus filed in

the district court under 28 U.S.C. § 2241. Duvall v. Attorney General, 436 F.3d 382, 386

(3d Cir. 2006) (citing INS v. St. Cyr, 533 U.S. 289, 292 (2001)). While St. Hill’s appeal

was pending, however, Congress enacted the REAL ID Act of 2005, Pub. L. No. 109-13,

119 Stat. 231 (2005), which divests district courts of jurisdiction over challenges to orders

of removal. The REAL ID Act mandates that habeas corpus petitions challenging orders

of removal pending in district courts are to be converted to petitions for review and

transferred to the appropriate court of appeals. REAL ID Act of 2005, Pub. L. No. 109-

13, § 106(c), 119 Stat. 231, 311 (2005). The appropriate court of appeals is the one

encompassing the jurisdiction where “the immigration judge completed the proceedings.”

8 U.S.C. § 1252(b)(2); Bonhometre v. Gonzales, 414 F.3d 442, 446 n.5 (3d Cir. 2005).

As noted above, St. Hill’s immigration proceedings took place in New York, and in a

proceeding currently stayed before the Court of Appeals for the Second Circuit, St. Hill

appeals parallel issues regarding his prior drug convictions and his eligibility for

cancellation of removal.

       Congress was silent regarding whether an appeal from a district court habeas

decision pending before a court of appeals at the time of the enactment of the REAL ID

Act should be converted into petitions for review. Bonhometre, 414 F.3d at 446. After

considering this lack of congressional direction, we have determined that such appeals

should likewise be converted into petitions for review. Duvall, 436 F.3d at 386;



                                              7
Bonhometre, 414 F.3d at 446. Thus, St. Hill’s appeal of the District Court’s denial of his

petition for habeas relief is properly converted into a petition for review of the BIA’s final

order of removal.

       St. Hill asserts that we should retain jurisdiction over his now-converted petition

for review instead of transferring it to the Court of Appeals for the Second Circuit. Like

St. Hill, Bonhometre’s immigration proceedings were completed outside the jurisdiction

of this Circuit. Although we acknowledged that “some habeas petitions pending before

the district courts of this Circuit may not be properly before us as converted-petitions for

review,” Bonhometre, 414 F.3d at 446 n.5 (citing 8 U.S.C. § 1252(b)(2) (1999)), we

nonetheless retained jurisdiction over Bonhometre’s petition. We reasoned that after

waiting such a long time for the resolution of his claims, “it would be a manifest injustice

to now transfer this case to another court for duplicative proceedings.” Id. Aligning

himself with Bonhometre, St. Hill seeks similar treatment of his case.

       With the enactment of the REAL ID Act, Congress sought to further streamline

what it perceived to be piecemeal review of orders of removal. See H.R. Rep. No. 109-

72, at 173-75 (2005), reprinted in 2005 U.S.C.C.A.N. 240, 298-299. Not only must we

abide by the express statutory command that petitions for review shall be transferred to

the appropriate court of appeals but also here, interests of judicial economy mandate that

we transfer this case. What distinguishes this case from Bonhometre is St. Hill’s stayed

petition on appeal. In Bonhometre, there was no indication that any court within the First



                                              8
Circuit – district or appellate – had taken an appeal or engaged in any review of the BIA

decision. Therefore, rather than accrue more delay in transferring the case where the

whole review process would necessarily have to begin from inception, we retained

jurisdiction out of concern that further delay would cause manifest injustice. Unlike

Bonhometre, however, St. Hill has court-appointed counsel ready to proceed in New

York; the case has been accepted for review; and without a doubt, it will proceed

expeditiously upon transfer. Finally, as it is clear that Second Circuit law governs the

converted petition for review, a fact recognized by the Pennsylvania District Court,

transfer is merited out of consideration for our sister Circuit’s greater expertise in the

application and analysis of the laws of New York.

                                              III.

       Accordingly, we will grant the Government’s motion to transfer venue to the Court

of Appeals for the Second Circuit.




                                               9
