Higgs v. Attorney Gen. of The United States

• Decision Date: 19 September 2011
• Docket Number: No. 09–3128.,09–3128.
• Citation: 655 F.3d 333
• Parties: Carlen Uriel HIGGS, AKA Cardel Higgs, AKA Cordell Dayes, Petitionerv.ATTORNEY GENERAL OF THE UNITED STATES, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

655 F.3d 333

Carlen Uriel HIGGS, AKA Cardel Higgs, AKA Cordell Dayes, Petitioner

v.ATTORNEY GENERAL OF THE UNITED STATES, Respondent.

No. 09–3128.

United States Court of Appeals, Third Circuit.

Submitted Pursuant to Third Circuit LAR 34.1(a) May 24, 2011. Filed Aug. 25, 2011. As Amended Sept. 19, 2011.

Thomas S. Jones, Esq., Alison M. Kilmartin, Esq., Jones Day, Pittsburgh, PA, for Petitioner.Kate Balaban, Esq., United States Department of Justice, Office of Immigration Litigation, Civil Division, Washington, DC, for Respondent.Before: FUENTES, FISHER, and NYGAARD, Circuit Judges.

OPINION OF THE COURT

FUENTES, Circuit Judge.

Carlen Higgs is the subject of a final order of removal from the United States issued by an Immigration Judge. Higgs filed a notice of appeal with the Board of Immigration Appeals (“BIA” or “Board”) incorrectly identifying the appeal as one from an interlocutory ruling, rather than from a final order of removal. As a result, the Board dismissed Higgs's appeal as moot. Higgs filed the instant petition for review, challenging the Board's dismissal of his notice of appeal, the merits of the IJ's decision, and the enforceability of the order of removal.

For the reasons below, we conclude the Board's order is a “final order” within the meaning of 8 U.S.C. § 1252(a)(1) and that the Board erred by failing to liberally construe Higgs's petition for review. We will therefore grant Higgs's petition for review and remand to the BIA for further proceedings.

I.

Carlen Higgs was born in the Bahamas in 1981 and in 1999 was lawfully admitted into the United States as a permanent resident. In 2005, Higgs was charged with possession of and intent to deliver marijuana, in violation of Pennsylvania law 35 Pa. Stat. § 780–113(a)(30), and knowing and intentional possession of a controlled substance, in violation of 35 Pa. Stat. § 780–113(a)(16). Three years later, the Government sought to remove Higgs under two provisions of the Immigration and Naturalization Act (“INA”). Under the INA, the Government “has the burden of establishing by clear and convincing evidence that ... the alien is deportable.” 8 U.S.C. § 1229a(c)(3)(A). The Government also sought removal pursuant to INA § 237(a)(2)(B)(i) which states:

Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State [or] the United States ... relating to a controlled substance (as defined in section 802 of Title 21), other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable.

8 U.S.C. § 1227(a)(2)(B)(i). In addition, the Government also invoked INA § 237(a)(2)(A)(iii), which authorizes removal of “[a]ny alien ... convicted of an aggravated felony.” 8 U.S.C. § 1227(a)(2)(A)(iii).

Represented by counsel, Higgs contested his removal on the ground that his prior convictions did not satisfy either provision. The Immigration Judge (“IJ”) agreed, finding that Higgs sustained only a conviction for possession of marijuana and thus was not removable under INA § 237(a)(2)(A)(iii). After examining the state trial testimony, the IJ also found that Higgs was not removable under subsection (B)(i) because he possessed less than 30 grams of marijuana. On November 13, 2008, the IJ issued an order terminating the removal proceedings against Higgs.

The Government moved for reconsideration, and on November 24, 2008 the IJ granted the motion. In so ruling, the IJ explained that he had misunderstood the arresting officer's trial testimony, and that in fact, he testified that Higgs was arrested “with 38 bags of marijuana containing between .83 grams and 2 grams.” A.R. 114.¹ Therefore, Higgs was removable under INA § 237(a)(2)(B)(i). Higgs then moved for reconsideration, arguing that the trial testimony was “vague and confusing” and did not “establish the exact amount of marijuana.” A.R. at 79.

On February 4, 2009, the IJ issued a third order, described as an “interlocutory ruling,” noting the uncertainty regarding the weight of the marijuana attributable to Higgs. Based on this uncertainty, the IJ ordered the Government “to obtain a copy of the property receipt” that itemized the seized marijuana, in the hopes that the receipt would conclusively prove the amount of marijuana at issue. A.R. at 80. The Government submitted the receipt, and on March 19, 2009, the IJ issued a fourth order, styled as an “Interlocutory Ruling on Motion,” finding in the Government's favor. The IJ explained that:

The trial transcript was certainly not the modicum of clarity. A review of the chemistry report verifies the substance confiscated from [Higgs] as marijuana, but only verified a total amount of 15.77 grams of marijuana from five (5) separate baggies out of a total of 38 baggies found on [Higgs's] person.

...

[T]he court is constrained to concur with government counsel that there was no need for the laboratory to perform an analysis on all of the baggies once the marijuana was confirmed.... [O]ne may reasonably presume that the remainder of the baggies which were not tested by the laboratory also contained marijuana. That is, it stretches credulity to believe that only the 5 baggies chosen for random testing contained marijuana and the remainder might not have.

A.R. at 61.

Thus the IJ concluded that Higgs possessed over 30 grams of marijuana at the time of his arrest. Following this fourth ruling, the IJ issued a Final Order of Removal on May 21, 2009. This fifth, and last, order was purely administrative in nature and did not contain any reasoning or further explanation of the IJ's decision. It also noted that Higgs was reserving his right to appeal, and that his notice of appeal was due by June 22, 2009.

On May 26, 2009, proceeding pro se,² Higgs filed a Notice of Appeal and a Motion for Emergency Stay of Removal. In the section of the notice asking for the date of the “decision in a merits proceeding” being appealed, Higgs wrote “March–19–2009.” A.R. at 6. Higgs also identified three reasons for his appeal: (1) the IJ's erroneous factual determination that Higgs possessed over 30 grams of marijuana, thus making him eligible for removal under INA § 237(a)(2)(B)(i); (2) the need for clarification of the Government's burden under the “clear and convincing evidence” standard; and, relatedly, (3) clarification on the relationship between the government's burden of proof, the rule of lenity and the rule “granting presumption to [a]liens.” A.R. at 7.

Higgs's first notice of appeal was rejected by the BIA as non-compliant because the form lacked the necessary first page. Higgs re-submitted his notice of appeal, but that appeal too was dismissed. In its ruling—issued July 2, 2009—the BIA determined that, because Higgs's Notice of Appeal identified the IJ's March 19, 2009 interlocutory ruling as the subject of its appeal, the petitioner had “filed an interlocutory appeal.” Noting that the basis for the interlocutory appeal had been superceded by a final order of removal, the Board found Higgs's “interlocutory appeal [to be] moot” and dismissed it. A.R. at 2.

Higgs timely filed this petition for review. He also sought a stay of the removal proceedings, which this Court granted. In this petition for review, Higgs argues that the BIA erred in failing to construe his notice of appeal liberally. As to the merits of his removal, Higgs first submits that the IJ erred in finding that there was clear and convincing evidence that he possessed more than 30 grams of marijuana and was therefore ineligible for removal pursuant to INA § 237(a)(2)(B)(i). Next, Higgs contends that the order removing him to the Bahamas cannot be enforced because, by operation of law, he is not a Bahamian citizen.³

II.

The Government raises two challenges to our jurisdiction in this case, which we review de novo. Hoxha v. Holder, 559 F.3d 157, 159 (3d Cir.2009) (citing Singh v. Ashcroft, 383 F.3d 144, 151 (3d Cir.2004)). In its motion to dismiss, the Government maintains that we lack jurisdiction over this petition because the BIA's order of dismissal is not a “final order” within Section 1252(a)(1) because it “did not adjudicate [Higgs's] removability” and did not “affirm the ... May 21, 2009 decision, which was the final order of removal in the instant case.” Gov't Mot. Dismiss at 4. In addition, the Government contends that we lack jurisdiction because Higgs has not exhausted his administrative remedies. We disagree.

Our jurisdiction to review a final order of removal is set forth in 8 U.S.C. § 1252(a)(1). Under that provision, we may review only “a final order of removal.” Id. (emphasis added); see also Khouzam v. Att'y Gen., 549 F.3d 235, 247 (3d Cir.2008). We have taken a broad view of what constitutes a “final order of removal” under Section 1252. In Yusupov v. Attorney General, we stated our “agree[ment] with” the decisions of “several of our sister circuit courts of appeals ... conclud[ing] that an order is final for jurisdictional purposes when a removability determination has been made that is no longer appealable to the BIA, regardless [of] whether a formal order of removal has been entered.” 518 F.3d 185, 195 (3d Cir.2008); see also Shehu v. Att'y Gen., 482 F.3d 652, 656 (3d Cir.2007) (“denial of a ... petition for asylum, withholding of removal, and relief under the [Convention Against Torture] constitutes ‘a final order of removal’ within the meaning of [section 1252], [because] the alien is entitled to no further process before deportation”).

In Khouzam, we found an agency action that made the deportation of an alien a certainty constituted a final order of removal. 549 F.3d at 247. In that case, following a ruling by the Second Circuit granting the petitioner a “deferral of removal,” the Department of Homeland Security (“DHS”) “decided to terminate the deferral of removal.” Id. As a result, the petitioner became “eligible for, and apparently subject to,...