376 F.3d 75 (2nd Cir. 2004), 01-4013, Foster v. I.N.S.

Docket Nº:Docket No. 01-4013.
Citation:376 F.3d 75
Case Date:July 16, 2004
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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376 F.3d 75 (2nd Cir. 2004)

Errol A. FOSTER, Petitioner,




Docket No. 01-4013.

United States Court of Appeals, Second Circuit

July 16, 2004

Argued: June 17, 2004.

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Mary Ann J. Sung (Lewis J. Liman, Hina Shamsi, Anil Kalhan, Mina Park, on the brief), Cleary, Gottlieb, Steen & Hamilton, New York, NY, for Petitioner.

Michael R. Holden, Assistant United States Attorney (David N. Kelley, United States Attorney, Sara L. Shudofsky, Assistant United States Attorney, on the brief), United States Attorney's Office for the Southern District of New York, New York, NY, for Respondent.

Before: B.D. PARKER, WESLEY Circuit Judges, IRENAS, District Judge. [*]


Errol A. Foster petitions for review of a Board of Immigration Appeals (BIA) decision affirming an Immigration Judge's (IJ) determination that Foster should be removed from this country as a consequence of a prior felony conviction. Foster contends that his state conviction for first degree manslaughter was improperly classified as an "aggravated felony" under the Immigration and Nationality Act (INA), 8 U.S.C. § 1101 et seq. He also contends that, even if he had been convicted of an aggravated felony, he is entitled to apply for discretionary relief under INA § 212(c), 8 U.S.C. § 1182(c), repealed by Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, § 304(b), 110 Stat. 3009-597 (Sept. 30, 1996). We conclude that Foster failed to exhaust his administrative remedies with respect to his claim that his crime was not an aggravated felony. Further, we lack subject matter jurisdiction to decide whether Foster is entitled to apply for § 212(c) relief. Accordingly, we deny the petition.


Foster is a native and citizen of Jamaica who entered the United States in 1981 as a lawful permanent resident. In June 1990, he was arrested and indicted in Supreme Court, New York County on three counts: murder in the second degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree. In October 1990, he pleaded guilty to manslaughter in the first degree and was sentenced to a term of 6 to 18 years' imprisonment.

Ten years later, in May 2000, while he was still incarcerated, the Immigration and Naturalization Service (INS), served Foster with notice to appear for a removal hearing. The notice alleged that his conviction for manslaughter constituted a "crime of violence" under 18 U.S.C. § 16 and that, therefore, he was removable as a consequence of his commission of an aggravated felony. 8 U.S.C. § 1227(a)(2)(A)(iii); see 8 U.S.C. § 1101(a)(43)(F) (defining "aggravated felony" to include a "crime of violence" under 18 U.S.C. § 16). Petitioner, acting pro se, filed a number of motions to terminate the proceedings, arguing that he had never admitted responsibility for the crime, that he was entitled to § 212(c) relief or any other available relief, and that he desired to preserve all of his rights.

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Following a hearing during which Foster admitted that he had pled guilty to first degree manslaughter, the IJ concluded that Foster was subject to removal based on his 1990 conviction, and that he was not eligible for discretionary relief under § 212(c) because he had served more than five years in prison. See Immigration Act of 1990, Pub.L. No. 101-649, § 511, 104 Stat. 4978, 5052 (Nov. 29, 1990) (amending § 212(c) to bar relief for aggravated felons who have served more than five years in prison).

Foster then appealed, again pro se, to the Board of Immigration Appeals arguing that he was entitled to § 212(c) relief. Before the BIA's decision issued, Foster filed a pro se petition for review of that decision in this Court along with a motion to proceed in forma pauperis and to stay any deportation proceedings pending disposition of his petition for review. Before we decided the petition, the BIA denied Foster relief, finding him eligible for removal. Despite his premature petition to us, we exercised jurisdiction noting that "the BIA has since affirmed petitioner's removal order and the respondent has not shown prejudice." We also granted Foster's motion to stay his deportation, allowed him to proceed in forma pauperis, and appointed him pro bono counsel.


Foster raises two claims on appeal: (1) that his conviction was not an "aggravated felony" under the INA, 8 U.S.C. § 1227(a)(2)(A)(iii) ("Any alien who is convicted of an aggravated felony at any time after admission is deportable."); and (2) that, even if his conviction could be considered an aggravated felony, he is entitled to apply for discretionary relief from removal under § 212(c). In addition to opposing these claims on the merits, the government contends that we lack jurisdiction because they had not been raised before the IJ or the BIA.

I. Exhaustion

Before an alien can seek judicial review of his removal decision, the INA requires that he exhaust all administrative remedies available to him. 8 U.S.C. § 1252(d) ("A court may review a final order of removal only if ... (1) the alien has exhausted all administrative remedies available to the alien as of...

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