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


10-15-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3431




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"Blackman v. Atty Gen USA" (2008). 2008 Decisions. Paper 363.
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                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 07-3431
                                      ___________

                                  NIGEL BLACKMAN,
                                             Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES
                    ____________________________________

                          On Petition for Review of an Order
                 of the United States Department of Homeland Security
                                Agency No. A97 703 835
                      ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  October 1, 2008
              Before: BARRY, SMITH and HARDIMAN, Circuit Judges

                           (Opinion filed: October 15, 2008)
                                     ___________

                                       OPINION
                                      ___________

PER CURIAM

       Nigel Blackman has filed a petition for review of a Final Administrative Removal

Order of the Department of Homeland Security ordering that he be removed to Trinidad.

For the following reasons, we will deny the petition for review.

       In 1997, Blackman, a native and citizen of Trinidad, pleaded guilty to Attempted
Criminal Sale of a Controlled Substance in the Third Degree in New York, New York.

A.R. 4. Blackman served five years of probation for the offense. On June 29, 2007,

Immigration and Customs Enforcement (“ICE”) served Blackman with a Notice of Intent

to Issue a Final Administrative Removal Order. This Notice stated that Blackman was

deportable under section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1227(a)(2)(A)(iii) as

amended, because he had been convicted of an aggravated felony as defined in section

101(a)(43), 8 U.S.C. § 1101(a)(43)(B). The Notice identified the felony as a 1997

conviction in New York for the attempted criminal sale of a controlled substance.

Blackman contends the ICE agent who served him did not explain what the document

was and directed Blackman to sign the portion of the Notice of Intent that reads as

follows:

       I admit the allegations and charge in this Notice of Intent. I admit that I am
       deportable and acknowledge that I am not eligible for any form of relief
       from removal. I waive my right to rebut and contest the above charges and
       my right to file a petition for review of the Final Removal Order. I do not
       wish to request withholding or deferral of removal. I wish to be removed to
       Trinidad.

Blackman contends that he is illiterate and did not understand what he was waiving when

he signed the document.

       On August 1, 2007, Blackman was served with a final administrative order of

removal. He filed a timely petition for review. In his brief on appeal, as noted, Blackman

argues that he was coerced into signing the Notice of Intent, and that he did not

understand what it said. Blackman argues that his Due Process rights were thereby

                                             2
violated.

       Under the REAL ID Act (effective May 11, 2005), any alien seeking to challenge a

final order of removal must do so by filing a petition for review in the court of appeals.

See 8 U.S.C. § 1252(a)(5). Although the Act generally removes jurisdiction to review

final orders of removal against certain criminal aliens, see § 1252(a)(2)(C), the Act

specifically grants jurisdiction to review a criminal alien’s “constitutional claims or

questions of law.” § 1252(a)(2)(D). The Government argues in its motion to dismiss that

this Court lacks jurisdiction because “Blackman has raised no constitutional or legal

claim that would except him from the jurisdictional bar.” Motion to Dismiss at 3.

However, Blackman’s claim that his Due Process rights were violated is clearly a

constitutional claim.

       The Government further argues in its brief that this Court lacks jurisdiction to

consider Blackman’s Due Process claim because by waiving his right to rebut and contest

the charges against him, he failed to exhaust his administrative remedies. But the essence

of Blackman’s claim is that his waiver of that right was unknowing and involuntary. We

find in these narrow circumstances, where Blackman claims he was prevented from

exhausting administrative remedies, he arguably did not have administrative remedies

“available” to him. See 8 U.S.C. § 1252(d)(1) (court may review final order of removal

only if “the alien has exhausted all administrative remedies available to the alien as of

right”).



                                              3
       Although we thus find that we have jurisdiction to consider Blackman’s claim, we

find it to be without merit. Aliens have a “right to a full and fair hearing that allows them

a reasonable opportunity to present evidence on their behalf,” but in order to “prevail on a

due process claim, the alien must show substantial prejudice.” Jarbough v. Attorney

General, 483 F.3d 184, 192 (3d Cir. 2007). Blackman does not contest that his conviction

constitutes an aggravated felony, nor does he claim that he is eligible for any relief from

removal. Because he has not explained how the outcome would have been any different

absent the alleged Due Process violations, he has not shown that he was prejudiced.1

       For the foregoing reasons, we will deny the petition for review.2




   1
     Blackman mentions in his brief that he “is currently collaterally attacking his plea
agreement conviction . . . based on ineffective assistance of counsel.” Petitioner’s Brief
at 21-22. But the pendency of post-conviction motions or other forms of collateral attack
does not negate the finality of a conviction for immigration removal purposes. Paredes v.
Attorney General, 528 F.3d 196, 198-99 (3d Cir. 2008). Further, even if Blackman had
had a hearing before an Immigration Judge, he would not have been able to collaterally
attack his conviction in immigration proceedings. In re Rodriguez-Carrillo, 22 I. & N.
Dec. 1031,1034 (BIA 1999).
   2
    Because we have jurisdiction, as explained above, the Government’s motion to
dismiss is denied.

                                              4
