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


1-10-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3239




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                                                NOT PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT

                         NO. 05-3239
                      ________________

                      LEWIS EDWARD,

                               Petitioner

                                v.


                 ATTORNEY GENERAL OF
                  THE UNITED STATES,

                           Respondent
          ____________________________________

        On Petition for Review of a Final Administrative
                         Removal Order
                   Agency No. A78 492 681
                      on November 8, 2004
        _______________________________________

          Submitted Under Third Circuit LAR 34.1(a)
                     JANUARY 5, 2006

Before: BARRY, STAPLETON AND GREENBERG, Circuit Judges.

                   (Filed: January 10, 2006)


                 _______________________

                        OPINION
                 _______________________
PER CURIAM



       Edward Lewis filed a petition for a writ of habeas corpus in the United States

District Court for the Middle District. The petition was transferred to this Court pursuant

to Real ID Act of 2005, § 106(c), Pub. L. No. 109-13, Div. B, 119 Stat. 231 (May 11,

2005). The petition has been treated as a timely-filed petition for review. See

Bonhometre v. Gonzales, 414 F.3d 442, 446 (3d Cir. 2005). In his brief, Lewis argues

that he was deprived of the opportunity for a hearing before an Immigration Judge, that he

did not commit any aggravated felonies, that he is eligible for relief pursuant to former

§ 212(c) of the Immigration and Nationality Act (INA), and that he should be allowed to

adjust status to that of Permanent Resident Alien. The Government argues that the

petition for review should be dismissed, as Lewis failed to exhaust his administrative

remedies. For the reasons that follow, we agree with the Government and will dismiss the

petition.1

       Lewis is a native and citizen of Jamaica. He entered the United States in 1987 as a


   1
     To the extent Lewis’s arguments could be construed as a challenge to the
constitutionality of the expedited removal provisions, he would be excused from raising
that argument before the agency. See In re Laura Estella Salazar-Regino, 23 I&N Dec.
223 (2002) (“We have long declared that we lack authority to rule on the constitutionality
of the statutes we administer.”). However, courts have found that the expedited removal
proceedings afford adequate due process protections. See e.g., United States v.
Benitze-Villafuerte, 186 F.3d 651, 660 (5th Cir.1999) (“[I]t is clear to us that the
administrative deportation procedures of § 1228 afforded [the alien] the unimpeded
opportunity to claim all the procedural due process to which he was constitutionally
entitled.”).
                                             2
non-immigrant visitor for pleasure, and failed to depart when his authorized visit expired.

He was convicted of a controlled substance violation in December 1994, and in March

1995 was convicted of the crime of Aggravated Assault, both violations of Pennsylvania

law.

       On October 29, 2004, Lewis was personally served with a Notice of Intent to Issue

a Final Administrative Removal Order.2 The Notice informed Lewis that he was subject

to expedited removal proceedings pursuant to 8 U.S.C. § 1228 [INA § 238(b)], based on

his convictions.3 The Notice informed Lewis that he “must respond to the above charges

in writing . . . within 10 calendar days of service of this notice (or 13 calendar days if

service is by mail).” On the third page of the Notice, Lewis checked a box and signed the

form, indicating that he admitted the allegations and charges in the Notice, that he

admitted he was deportable and was not eligible for any form of relief from removal, and

that he waived the right to rebut and contest the charges and the right to file a petition for

review of the Final Removal Order.

       A Final Administrative Removal Order was entered on November 8, 2004, finding

that Lewis was deportable as an alien who had committed an aggravated felony. The


   2
     The Notice is dated June 23, 2000, but the acknowledgment of receipt on the second
page reflects that the Notice was served on October 29, 2004. The record does not reflect
the reason for the delay.
   3
     Section 1228 provides for expedited removal of aliens who have committed
aggravated felonies. The Notice alleges that both his controlled substance violation and
his aggravated assault violation are aggravated felonies under the statutory definition.
See 8 U.S.C. § 1101(a)(43)(B) & (F).
                                              3
order was served on Lewis on November 16, 2004, and he reserved the right to file a

petition for review. Lewis timely filed a petition for a writ of habeas corpus on December

6, 2004.4

       We agree with the Government that Lewis was required to exhaust his

administrative remedies before we could review his final order of removal. The relevant

statute provides that a “court may review a final order of removal only if . . . the alien has

exhausted all administrative remedies available to the alien as of right.” 8 U.S.C.

§ 1252(d)(1); see Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d Cir. 2005) (requiring

alien to raise an issue to the agency in a manner that allows it to correct an error before

seeking judicial review). Lewis had the opportunity to rebut the charges against him in

response to the Notice, but waived that opportunity.

       Lewis’s arguments that he was prevented from exhausting his administrative

remedies are unavailing. First, he has submitted a letter dated September 29, 2004,

addressed to the Executive Office for Immigration Review (EOIR). The letter stated that

he was in immigration custody, but had not yet seen an immigration officer. Lewis also

submitted a reply from EOIR, dated October 1, 2004, noting that they had no record of

his case, and advising him to talk to his deportation officer. As this exchange of

correspondence took place before Lewis was even served with the Notice of Intent to


   4
    It appears that Lewis also mistakenly filed a petition for review, dated November 28,
2004, with the Bureau of Immigration and Customs Enforcement. See Exhibits to
Government Response, district court docket #9, Exhibit E. This petition, filed outside the
time to respond to the Notice, could not serve to exhaust his administrative remedies.
                                              4
Remove, it could not have affected his ability to rebut the charges in the Notice. Second,

he notes that he was not served with the November 8, 2004 Final Administrative Order

until November 16, 2004. However, that did not affect his ability to rebut the charges of

the initial Notice, as he was required to rebut the charges on or before November 8, 2004

(within ten days from the date he was served with the Notice). Lewis was not prejudiced

by service of the Final Administrative Order on November 16, 2004, as he was able to

timely file a petition for review of that order.

       Because Lewis did not raise his issues before the agency, we lack jurisdiction to

consider his arguments here. The petition will be dismissed.5




   5
     We note that even if Lewis had exhausted administrative remedies, we would deny
the petition on the merits. Lewis’s conviction for aggravated assault, as a crime of
violence for which a term of imprisonment of at least 1 year was imposed, is an
aggravated felony pursuant to 8 U.S.C. § 1101(a)(43)(F). His sentence of four to eighteen
months qualifies as a sentence of at least one year. See Bovkun v. Ashcroft, 283 F.3d
166, 170-71 (3d Cir. 2002) (sentence with both a minimum and a maximum term is
treated comparably with a functionally equivalent sentence with only a maximum term).
(We express no opinion as to whether his controlled substance violation qualifies as an
aggravated felony). As an alien subject to expedited removal, he is not eligible for any
discretionary relief from removal. See 8 U.S.C. § 1228(b)(5).
                                               5
