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


6-24-2005

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Precedential or Non-Precedential: Precedential

Docket No. 04-3135




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                                          PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                        No. 04-3135

               PERIKLIS PAPAGEORGIOU,
                       Petitioner

                              v.

   * ALBERTO R. GONZALES, Attorney General of the
     United States; BUREAU OF CITIZENSHIP AND
               IMMIGRATION SERVICES,
                      Respondents

* Substituted pursuant to Rule 43c, F.R.A.P.

  On Appeal from the United States Department of Justice
              Board of Immigration Appeals
                (BIA No. A35-090-961)

     Submitted pursuant to Third Circuit L.A.R. 34.1(a)
                     on June 9, 2005


 Before: AMBRO, VAN ANTWERPEN, and TASHIMA,*
                  Circuit Judges.

* The Honorable A. Wallace Tashima, Senior United States
Circuit Judge for the United States Court of Appeals for the
Ninth Circuit, sitting by designation.
                    (Filed: June 24, 2005)

John D. Perez, Esq.
41-51 Wilson Avenue, 2nd Floor
Newark, New Jersey 07105
      Counselor for Petitioner

Peter D. Keisler
Assistant Attorney General, Civil Division
Linda S. Wernery
Senior Litigation Counsel, Civil Division
William C. Peachey, Attorney
Janice K. Redfern, Attorney
Office of Immigration Litigation
United States Department of Justice
Civil Division
P.O. Box. 878, Ben Franklin Station
Washington, D.C. 20044
       Counselor for Respondent

                            _____

                 OPINION OF THE COURT




VAN ANTWERPEN, Circuit Judge.

      Periklis Papageorgiou seeks review of a final order of the
Board of Immigration Appeals (“BIA”) summarily affirming an
order of removal by an Immigration Judge (“IJ”). For the
reasons that follow, we will deny the petition.



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                               I.

       Papageorgiou is a native and citizen of Greece who
entered the United States in 1978, later becoming a permanent
resident. On September 25, 1998, he was convicted in the
United States District Court for the District of Maryland,
pursuant to a plea agreement, of the offense of Distribution of
Cocaine in violation of 21 U.S.C. § 841(a)(1). He was
sentenced to 46 months in prison. Based on that conviction, the
former Immigration and Naturalization Service (“INS”)1
charged him with removability pursuant to §§ 237(a)(2)(A)(iii)
and (B)(I) of the INA, 8 U.S.C. § 1227 (a)(2)(A)(iii) and (B)(I),
as an alien convicted of an aggravated felony, a controlled
substance offense, and trafficking in a controlled substance.
Papageorgiou subsequently sought relief under Article III of the
United Nations Convention Against Torture (“CAT”), alleging
the government of Greece would not be able to protect him from
his former business partner if Petitioner was removed to
Greece.2 An IJ found against Petitioner on all issues on October
10, 2003. Petitioner appealed to the BIA, which affirmed the IJ



       1
          On March 1, 2003, the INS ceased to exist as an agency
within the Department of Justice and the INS’s functions were
transferred to the Department of Homeland Security. See Homeland
Security Act of 2002, Pub.L. No. 107-296 §§ 441, 451 & 471, 116
Stat. 2135.
       2
          CAT refers to the United Nations Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, implemented in the
United States by the Foreign Affairs Reform and Restructuring Act
of 1998, Pub.L. No. 105-277, § 2242, 112 Stat. 2681-761 (codified
at 8 U.S.C. § 1231).

                               3
without issuing a separate opinion on June 29, 2004, pursuant to
8 C.F.R. § 1003.1(e)(4). This petition for review followed.

                               II.

       Where the BIA summarily affirms an IJ’s decision
without issuing a separate opinion, we normally review the IJ’s
decision itself. See Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir.
2003) (en banc). Here, however, the government argues that we
lack jurisdiction to do so. In support of its position, the
government contends that INA § 242(a)(2)(C), 8 U.S.C. § 1252
(a)(2)(C) divests courts of appeals of jurisdiction to review the
removal orders of aliens who are removable on the basis of
having committed certain crimes, including drug-trafficking
crimes.

       As we have previously observed, this Court has always
retained “jurisdiction to determine our jurisdiction” under §
242(a)(2)(C) with respect to both of the predicate facts required
for application of § 242(a)(2)(C) – first, whether a petitioner is
in fact an alien, and, second, whether he or she is indeed
removable by reason of having been convicted of one of the
enumerated offenses in INA § 242(a)(2)(C). Patel v. Ashcroft,
294 F.3d 465, 468 (3d Cir. 2002) (citing Drakes v. Zimski, 240
F.3d 246, 247 (3d Cir. 2002)).

        Until May 11 of this year, if both of these conditions
were satisfied, then further adjudication of a petition for review
was prohibited under INA § 242(a)(2)(C), and we would dismiss
the petition for lack of jurisdiction. Id. at 248. That would have
been the case here, as it is undisputed that Papageorgiou is a
permanent resident alien and that he does not contest his drug



                                4
trafficking conviction under 21 U.S.C. § 841(a)(1) for
distributing cocaine.

       This jurisdictional framework for aliens convicted of
certain enumerated offenses was restructured by Congress and
the President on May 11, 2005, however, when the President
signed into law the REAL ID Act of 2005, Pub.L. No. 109- 13,
119 Stat. 231 (the “Act”). Relevant to this appeal is Section
106(a)(1)(A)(iii) of the Act, which amends 8 U.S.C. § 1252 by
adding a new provision, § 1252(a)(2)(D), as follows:

       Judicial Review of Certain Legal Claims.-

       Nothing in subparagraph (B) or (C), or in any
       other provision of this Act (other than this
       section) which limits or eliminates judicial
       review, shall be construed as precluding review of
       constitutional claims or questions of law raised
       upon a petition for review filed with an
       appropriate court of appeals in accordance with
       this section.

With this amendment, Congress evidenced its intent to restore
judicial review of constitutional claims and questions of law
presented in petitions for review of final removal orders. This
now permits all aliens, including criminal aliens, to obtain
review of constitutional claims and questions of law upon the
filing of a petition for review with an appropriate court of
appeals. We reach this conclusion because Congress has
provided that nothing in 8 U.S.C. § 1252(a)(2)(B), (C), or any
other provision of the INA shall preclude judicial review of such
orders, unless such review is barred by some other provision of
8 U.S.C. § 1252. For this reason, we believe that, with passage

                               5
of the Act, Congress has repealed all jurisdictional bars to our
direct review of constitutional claims and questions of law in
final removal orders other than those remaining in 8 U.S.C. §
1252 (e.g., in provisions other than (a)(2)(B) or (C)) following
the amendment of that section by the Act.

       We observe that the Ninth Circuit, the only other court of
appeals to have considered this question thus far, has reached
the same conclusion. See Fernandez-Ruiz v. Gonzales, __ F.3d
__, 2005 WL 1301593 (9th Cir. May 31, 2005), at *1
(concluding that alien petitioner’s convictions did not divest
court of jurisdiction pursuant to § 1252(a)(2)(B) because REAL
ID Act restores judicial review of constitutional claims and
questions of law presented in petitions for review pursuant to
new provision § 1252(a)(2)(D)).

        We must next determine the effective date of the Act to
see if it applies to Papageorgiou’s petition. Our review of the
Act confirms that Congress expressly intended that the
amendments restoring our jurisdiction be applied retroactively
to pending petitions for review. The Act states that §
1252(a)(2)(D) “shall take effect upon the date of the enactment"
and that it shall apply to any case “in which the final
administrative order of removal, deportation, or exclusion was
issued before, on, or after the date of the enactment.” § 106(b).
Given this statutory language, we conclude that § 1252(a)(2)(D),
as added by the Act on May 11, 2005, applies to Papageorgiou’s
petition for review, as well as to all other pending or future
petitions for direct review challenging final orders of removal,
except as may otherwise be provided in § 1252. The Ninth
Circuit’s conclusion concurs with ours. See Fernandez-Ruiz, __
F.3d __ at *1 (“§ 1252(a)(2)(D), as added by the REAL ID Act,
applies to . . . all other pending or future petitions for direct

                               6
review challenging final orders of removal, except as may be
otherwise provided in § 1252 itself”).

                              III.

       Because we are no longer jurisdictionally barred from
reviewing Papageorgiou's petition for review on account of his
past conviction, we now turn to review his petition on the
merits. Papageorgiou’s asserted constitutional claim is that the
BIA's summary affirmance of the IJ's decision deprived him of
due process because it was rendered without a separate BIA
opinion. We have previously held that due process challenges
to such summary BIA affirmances are without merit. See Dia
v. Ashcroft, 353 F.3d at 238 (“We agree with our sister courts of
appeals . . . that the streamlining regulations [which allow for
BIA affirmances of IJ decisions without separate opinions] do
not violate the Due Process Clause of the Constitution.”).

                              IV.

      For the foregoing reasons, the petition for review is
denied.




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