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


1-29-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5574




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Recommended Citation
"Muirhead v. Atty Gen USA" (2008). 2008 Decisions. Paper 1693.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1693


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                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                  __________

                                       No. 05-5574
                                       ___________

                                  JOAN MUIRHEAD,

                                        Petitioner


                                              v.

                 ATTORNEY GENERAL OF THE UNITED STATES,

                                        Respondent

                                       ___________

                          Petition for Review of an Order of the
                              Board of Immigration Appeals
                                    (No. A79-699-016)
                                       ___________

                                ARGUED June 14, 2007

            Before: McKEE, STAPLETON, and NYGAARD, Circuit Judges.

                                (Filed January 29, 2008)

Orest Bezpalko, II, Esq. (Argued)
Bezpalko & Associates
452 East Girard Avenue, Suite 101
Philadelphia, PA 19125
                     Counsel for Petitioner

Thomas H. Dupree, Jr., Esq. (Argued)
United States Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, N.W.
Washington, DC 20530

Ethan B. Kanter, Esq.
Douglas E. Ginsburg, Esq.
Christopher T. Dong, Esq.
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878, Ben Franklin Station
Washington, DC 20044
                    Counsel for Respondent


                                       ___________

                               OPINION OF THE COURT
                                    ___________


NYGAARD, Circuit Judge.

       Because our opinion is wholly without precedential value, and because the parties

and the District Court are familiar with its operative facts, we offer only an abbreviated

recitation to explain why we will deny the petition for review.

       Joan Muirhead, a native and citizen of Jamaica, twice pleaded guilty to distributing

cocaine in violation of New Jersey law. Several years later, she was personally served

with a Form I-851 notice that she was subject to removal as an aggravated felon. She

signed the form, admitted that she was removable, waived her rights to contest the




                                             2
charges or to seek relief from removal, and indicated that she wished to be removed to

Jamaica. She was detained 1 and later removed.

       Muirhead argues that the Government’s delay in processing her removal and its

expedited administrative removal procedures denied her an opportunity to be heard and to

present a defense to her removal. An alien claiming a due process violation must

demonstrate that (1) she was entitled to greater procedural protections; and (2) that denial

of those protections resulted in substantial prejudice.

       Even assuming Muirhead was entitled to additional procedural protections, she has

failed to demonstrate their absence caused her any prejudice. The record clearly shows

she was removable as an aggravated felon. See 8 U.S.C.A. §1228(b) (2005). In addition,

she was never eligible for §212(c) relief, because it was only available to lawful

permanent residents. She contends that she could have been eligible for suspension of

removal pursuant to former INA §244, if the Government had acted sooner. However, she

was not eligible for §244 relief before Congress repealed it in 1996, and, as an aggravated

felon, she has never been eligible for cancellation of removal under the current §240A(b).

Moreover, as we have held, an alien does not have a constitutional right to have her


       1.
         Two weeks after being detained, Muirhead obtained representation and sought
review of the evidence against her. She then filed a petition for a writ of habeas corpus in
the District Court for the Eastern District of Pennsylvania. The court granted a stay of
deportation, and transferred the matter to this Court pursuant to the REAL ID Act. We
lifted the stay of removal and remanded her detention challenge to the District Court for
the Middle District of Pennsylvania, where she was confined. That court dismissed her
detention challenge as moot when she was removed.

                                              3
removal proceedings commence at any certain time. DiPeppe v. Quarantillo, 337 F.3d

326, 335 n.17 (3d Cir. 2003).

       Finally, we also reject Muirhead’s request for relief under the common law writ of

audita querela. Several courts of appeals have concluded that the All Writs Act, 28

U.S.C. §1651, grants courts authority to order audita querela relief in exceptional

circumstances. However, the writ is available only where the petitioner raises a (1) valid

legal objection; (2) to a judgment that arises after that judgment is entered; and (3) that is

not redressable by some other means. As explained above, Muirhead has failed to raise a

valid legal objection to her removal, and she is therefore not entitled to the writ.

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




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