862 F.2d 870 (4th Cir. 1988), 88-2510, Kelly v. U.S. I.N.S.

Docket Nº:88-2510.
Citation:862 F.2d 870
Party Name:Errol A. KELLY, Petitioner, v. U.S. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
Case Date:November 18, 1988
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 870

862 F.2d 870 (4th Cir. 1988)

Errol A. KELLY, Petitioner,



No. 88-2510.

United States Court of Appeals, Fourth Circuit

November 18, 1988

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA4 Rule 36 regarding use of unpublished opinions)

Submitted: Oct. 26, 1988.



On Petition for Review of an Order of the Board of Immigration Appeals. (A37-031-955).

Curtis L. Solomon, for appellant.

John R. Bolton, Assistant Attorney General, Robert Kendall, Jr., Eileen A. Carty (United States Department of Justice), for appellee.

Before DONALD RUSSELL, K.K. HALL and WILKINSON, Circuit Judges.


Errol A. Kelly is a native and citizen of Jamaica who originally entered the United States as an immigrant on March 4, 1980. He last entered the United States as a returning resident alien on September 7, 1983.

On October 22, 1984, Kelly pleaded guilty to possession of a controlled substance, i.e., marijuana, in sufficient quantity to indicate an intent to distribute.

On March 10, 1986, the Immigration and Naturalization Service (INS) began deportation proceedings against Kelly through the issuance of an Order to Show Cause charging him with deportability under section 241(a)(11) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1251(a)(11), for having been convicted of a narcotics offense.

On July 16, 1986, Kelly appeared with counsel before the immigration judge, where he denied deportability, and alternatively, sought eligibility for discretionary relief from deportation under section 212(c) of the Act. [*] Kelly's counsel conceded at the hearing that his client would not be eligible for section 212(c) relief.

At a reconvened hearing on September 25, 1986, Kelly's counsel again conceded that Kelly would not be eligible for discretionary relief because he was admitted to the United States for permanent residence on March 4, 1980, and thus, at the time of the deportation hearing in July 1986, did not have seven years domicile necessary to make such an application. Kelly conceded at the hearing that he was not a United States citizen, that he was an alien, and that he was convicted of possessing fifty-nine to sixty pounds of marijuana. Kelly's conviction records were admitted into evidence at the hearing. The judge therefore found that, based upon Kelly's own admissions, he was deportable as charged, and ordered his deportation to Jamaica. The judge noted that he did not have jurisdiction to address Kelly's contention that the seven-year requirement of § 212(e) violated the Constitution. Accordingly, the immigration judge issued an order of deportation.

Kelly appealed the order of deportation, contending that § 212(c) of the Act violates the due process clause. The Board of Immigration Appeals (BIA or Board) dismissed the appeal, noting that it did not have jurisdiction to rule upon the constitutionality of the statute it administers.

Kelly petitioned this Court for review of the Board's decision, contending that § 212(c), of the Act, 8 U.S.C. § 1182(c) is unconstitutional insofar as it distinguishes between lawful permanent residents with an unrelinquished domicile of seven consecutive years and those without. Kelly does not...

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