                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-20-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4727




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 04-4727


                             DAVID LENWORTH HOHN,
                                           Petitioner

                                           v.

                   ATTORNEY GENERAL OF THE UNITED STATES


                   PETITION FOR REVIEW OF A DECISION OF
                    THE BOARD OF IMMIGRATION APPEALS
                            Agency No. A29-866-663


                      Submitted Under Third Circuit LAR 34.1(a)
                                 November 17, 2005


       Before: BARRY and AMBRO, Circuit Judges, and POLLAK,* District Judge


                          (Opinion Filed: December 20, 2005)


                                       OPINION


BARRY, Circuit Judge

        David Lenworth Hohn, a native of Jamaica and citizen of both Jamaica and


   *
   The Honorable Louis H. Pollak, District Judge, United States District Court for the
Eastern District of Pennsylvania, sitting by designation.
Canada, seeks review of a Board of Immigration Appeals (“BIA”) decision pretermitting

his application for cancellation of removal under the Immigration and Naturalization Act

(“INA”) § 240A(a), 8 U.S.C. § 1229b(a). Because we write primarily for the parties in

this matter, we will dispense with a full recitation of the facts and limit our discussion

only to those facts necessary to reach our decision.

       Hohn initially entered the United States on a visitor’s visa in 1987. In September

1990, he was convicted of conspiracy to transport aliens, in violation of 8 U.S.C. §

1324(a)(1)(B). Despite this conviction, Hohn became a lawful permanent resident in July

1993. In January 2000, he was convicted in the Superior Court, Essex County, New

Jersey, of one count of Possession of a Controlled Dangerous Substance and two counts

of Possession of a Weapon in the Third Degree. He was sentenced to 364 days in the

Essex County Jail. Sometime following his release from prison, Hohn left the United

States, apparently voluntarily. On August 30, 2001, he returned, arriving at Newark

Airport on a flight from Jamaica. He applied for admission as a returning lawful

permanent resident. In October 2001, the Immigration and Naturalization Service

(“INS”) instituted removal proceedings against him on the ground that he was

inadmissible under INA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1882(a)(2)(A)(i)(II), as an alien

convicted of a controlled substance violation. At the hearing before the Immigration

Judge (“IJ”), Hohn conceded removability, but applied for cancellation of removal under

INA § 240(A)(a), 8 U.S.C. §1229b(a). The IJ denied Hohn’s application, and the BIA



                                              2
affirmed without opinion.1

       To be eligible for cancellation of removal under § 240(A)(a), the petitioner must

show that he or she: (1) has been an alien lawfully admitted for permanent residence for

at least five years; (2) has resided in the United States continuously for seven years; and

(3) has not been convicted of an aggravated felony. INA § 241(A)(a), 8 U.S.C.

§1229b(a). Failure to satisfy any one of these requirements renders the petitioner

ineligible for relief. The IJ found that Hohn failed to satisfy both the second and third

requirements. First, the IJ determined that Hohn’s 1990 conviction for conspiracy to

transport aliens constituted a conviction for an aggravated felony, which rendered him

ineligible for relief under INA § 240(A)(a)(3). Second, the IJ found that Hohn failed to

prove seven years of continuous physical presence in the country as required by INA §

241(A)(a)(2). Hohn challenges both of these findings.

       Under 8 U.S.C. § 1252(a)(2)(C), where no constitutional claim or question of law

has been raised, we lack jurisdiction to review “any final order of removal against an

alien who is removable” because of a controlled substance violation. However, the

REAL ID Act of 2005, Pub. L. 109-13, 119 Stat. 231, restored direct review of

constitutional claims and questions of law presented in petitions for review of final

removal orders. 8 U.S.C. § 1252(a)(2)(D). Hohn does not dispute that he is subject to



   1
    “[W]here the BIA directs us to the opinion and decision of the IJ who originally
assessed [the] application, we review the IJ’s opinion.” Dia v. Ashcroft, 353 F.3d 228,
240 (3d Cir. 2003) (en banc).

                                              3
removal as a controlled substance violator. “Thus, examining each of [Hohn’s] present

claims, we are limited to ‘pure questions of law,’ and to ‘issues of application of law to

fact, where the facts are undisputed and not the subject of challenge.’” Kamara v. AG of

the United States, 420 F.3d 202, 211 (3d Cir. 2005) (quoting Bakhtriger v. Elwood, 360

F.3d 414, 420 (3d Cir. 2004)).

       With respect to the IJ’s determination that Hohn failed to prove seven years of

continuous residence, Hohn does not claim a constitutional violation or an error in the

application of the statutory standard. Rather, he argues that the factual record does not

support the IJ’s finding. Specifically, he claims that “the IJ improperly ignored

substantial evidence in the record of the Petitioner’s seven years of continuous residence

after admission in any status.” Appellant’s Br. at 8. This is a factual question, which is

beyond the scope of our jurisdiction under 8 U.S.C. § 1252(a)(2)(C)-(D). See Bakhtriger

v. Elwood, 360 F.3d 414, 425 (3d Cir. 2004) (petitioner’s argument that the factual record

did not support the IJ’s finding was a factual issue which was “squarely on the forbidden

side of the line”).

       Because we lack jurisdiction to review the continuous residence claim, the BIA’s

affirmance of the IJ’s decision that Hohn is ineligible for relief because he failed to prove

seven years continuous residence will stand. This finding alone is sufficient to render

Hohn ineligible for cancellation of removal under § 241(A)(a). It is, therefore,

unnecessary for us to address Hohn’s argument that the IJ erred in finding that the 1990



                                              4
conviction was for an aggravated felony, thus precluding him from seeking cancellation.

Accordingly, we decline to do so.

      For the foregoing reasons, we will deny Hohn’s petition for review.




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