Douglas v. Ashcroft

• Decision Date: 08 July 2004
• Docket Number: No. 04-1906.,04-1906.
• Citation: 374 F.3d 230
• Parties: Hensworth DOUGLAS, Petitioner v. John ASHCROFT, Attorney General of the United States of America, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

374 F.3d 230

Hensworth DOUGLAS, Petitioner v. John ASHCROFT, Attorney General of the United States of America, Respondent.

No. 04-1906.

United States Court of Appeals, Third Circuit.

Sur Motion Submitted Under Third Circuit LAR 34.1(a) May 19, 2004.

Filed July 8, 2004.

Cherylle C. Corpuz, Philadelphia, PA, for Petitioner.

Linda S. Wernery, William C. Peachey, United States Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.

Before SLOVITER, McKEE, and BECKER, Circuit Judges.

SLOVITER, Circuit Judge.

The motion by the petitioner Hensworth Douglas for a stay of removal was routed to a motion panel of this court in accordance with our procedure. Douglas sought the stay of removal pending our final decision on his petition for review of the Board of Immigration Appeals' ("BIA") order denying his application for cancellation of removal under 8 U.S.C. § 1229b(a) and ordering his removal to Jamaica. Respondent, the Attorney General, has filed a motion to dismiss Douglas' petition for lack of subject matter jurisdiction. The central question before us on the merits is whether we may review a final order of the BIA based on two alternative legal grounds when we are without jurisdiction to review the order based on one of those grounds. This appeal also gives us the opportunity to set forth for the first time in a precedential opinion the standard that we follow in ruling on a motion for a stay of removal pending a decision on the Petition for Review.

Background

Douglas entered the United States with a valid visa in 1987. He received lawful permanent resident status sometime thereafter. Douglas was convicted under Delaware law in October 2002 for trafficking of cocaine. In June 2003, the Department of Homeland Security ("DHS") issued a Notice to Appear charging Douglas with being subject to removal from the United States, pursuant to 8 U.S.C. §§ 1227(a)(2)(A)(iii) and (a)(2)(B)(i), as an alien convicted of an "aggravated felony" as well as of certain controlled substance offenses. Douglas admitted to the Delaware conviction during a hearing before an Immigration Judge ("IJ"), who found Douglas to be an alien subject to removal under § 1227(a)(2)(B)(i). The IJ, however, ruled that § 1227(a)(2)(A)(iii) is inapplicable to Douglas on the ground that the underlying Delaware drug conviction did not constitute an "aggravated felony" based on our decision in Gerbier v. Holmes, 280 F.3d 297 (3d Cir.2002). IJ's Op. at 1-2. Neither Douglas nor the DHS challenged these findings before the BIA or before us here.

The DHS subsequently amended the Notice to Appear, charging Douglas with being subject to removal, again pursuant to § 1227(a)(2)(A)(iii), as an alien convicted of the "aggravated felony" of "murder, rape, or sexual abuse of a minor" under 8 U.S.C. § 1101(a)(43)(A). This charge was based on Douglas' 1992 conviction under New York State Penal Law Section 130.20 for "sexual misconduct," a misdemeanor under New York state law.¹

The IJ, in an oral decision dated November 20, 2003, found that Douglas'"sexual misconduct" conviction under New York state law did not constitute an "aggravated felony" under the Immigration and Naturalization Act ("INA"). Having determined that the Section 130.20 of the New York Penal Code is a divisible statute that covers both aggravated felony and non-aggravated felony offenses as defined by 8 U.S.C. § 1101(a)(43)(A), the IJ ruled that the DHS failed to establish through evidence that Douglas' conviction under Section 130.20 was pursuant to a portion of the section that qualifies as an "aggravated felony." IJ's Op. at 9-11. The IJ also rejected the DHS's contention that Douglas'"sexual misconduct" conviction qualifies as a crime of moral turpitude. IJ's Op. at 10-11. Having thus determined that Douglas has not committed an "aggravated felony," the IJ ruled that Douglas was eligible to apply for cancellation of removal under 8 U.S.C. § 1229b(a).² The IJ then granted the application for cancellation of removal after she balanced the hardship to Douglas and his family members against his criminal history.

On appeal, the BIA vacated the IJ's decision regarding the "aggravated felony" charge and ordered Douglas' removal from the United States. The BIA ruled that Douglas' 1992 "sexual misconduct" conviction qualified as an "aggravated felony" based on the charging instrument from that conviction, as submitted by the DHS, which reflected that Douglas engaged in "nonconsensual sexual intercourse with a 14-year-old female" victim. BIA's Op. at 2. It found that because this description of Douglas' offense fulfilled the necessary elements for "sexual abuse of a minor" under 8 U.S.C. § 1101(a)(43)(A), as defined by the BIA's decision in Matter of Rodriguez-Rodriguez, 22 I. & N. Dec. 991 (BIA 1999), Douglas' conviction falls within the portion of New York Penal Law Section 130.20 that qualified as an "aggravated felony" under the INA, which rendered Douglas ineligible for cancellation of removal under 8 U.S.C. § 1229b(a).³ The BIA therefore ruled that Douglas' "applications for relief from removal are pretermitted and [Douglas] is ordered removed to Jamaica." BIA's Op. at 3.

Douglas filed his petition for review on April 2, 2004, challenging only the BIA's ruling with respect to the "aggravated felony" issue. He thereafter filed an emergency motion on May 4, 2004 to stay his removal pending our review of his petition. The Attorney General responded with a motion to dismiss Douglas' petition based on our lack of jurisdiction under 8 U.S.C. § 1252(a)(2)(C),⁴ to review the BIA's order of removal against Douglas due to the IJ's finding that Douglas' Delaware drug offense conviction qualified as a controlled substance offense under 8 U.S.C. § 1227(a)(2)(B)(i). We granted Douglas' motion to stay removal so that we would have an opportunity to consider the legal issue with respect to our jurisdiction, but we will now dismiss Douglas' petition for review for lack of subject matter jurisdiction.

Discussion

A. Douglas' Motion for Stay of Removal

As we noted above, we have not previously addressed the standard of review for assessing a motion to stay removal of an alien pending judicial review. Most courts of appeals, however, have applied the standard for granting a preliminary injunction in examining requests for a stay of removal. Under the preliminary injunction standard, a petitioner requesting a stay of removal must demonstrate (1) a likelihood of success on the merits of the underlying petition; (2) that irreparable harm would occur if a stay is not granted; (3) that the potential harm to the moving party outweighs the harm to the opposing party if a stay is not granted; and (4) that the granting of the stay would serve the public interest. Arevalo v. Ashcroft, 344 F.3d 1, 7-8 (1st Cir.2003); Mohammed v. Reno, 309 F.3d 95, 100 (2d Cir.2002); Bejjani v. INS, 271 F.3d 670, 688-89 (6th Cir.2001). The Ninth Circuit applies a two-pronged standard of review that provides that a stay of removal should be granted when an alien shows "either (1) a probability of success on the merits and the possibility of irreparable injury, or (2) that serious legal questions are raised and the balance of hardships tips sharply in the petitioner's favor." Andreiu v. Ashcroft, 253 F.3d 477, 483 (9th Cir.2001) (en banc) (quoting Abbassi v. INS, 143 F.3d 513, 514 (9th Cir.1998)). This standard collapses the traditional four-prong test. For the sake of providing both linguistic and analytic clarity, we adhere to the traditional four-part framework for the preliminary injunction standard.

The Court of Appeals for the Eleventh Circuit, however, applies a more stringent standard that requires petitioners to produce "clear and convincing evidence" that the execution of the removal order is prohibited by law. Weng v. United States Att'y Gen., 287 F.3d 1335, 1337 (11th Cir.2002). That court based its holding on the language of 8 U.S.C. § 1252(f)(2), which prohibits courts from enjoining the removal of any alien pursuant to a final order "unless the alien shows by clear and convincing evidence that the entry or execution of such order is prohibited as a matter of law." Weng, 287 F.3d at 1338. But see Bonhomme-Ardouin v. United States Att'y Gen., 291 F.3d 1289, 1290-91 (11th Cir.2002) (Barkett, J., joined by Wilson, J., concurring) (stating that "Weng applied the wrong standard for a motion for temporary stay of deportation pending appeal" and urging the court to reconsider the issue en banc). See generally Kenyeres v. Ashcroft, 538 U.S. 1301, 1303-05, 123 S.Ct. 1386, 155 L.Ed.2d 301 (2003) (discussing differing standards applied by various Courts of Appeals but declining to decide the issue).

We now join the First, Second, and Sixth Circuits in holding that the proper standard of review for motions to stay removal is the traditional four-part test used for adjudicating motions for preliminary injunction, as we set forth above. The opinions in Mohammed, 309 F.3d at 99-100, and in Arevalo, 344 F.3d at 7-9, both set forth clear multi-level analyses of why 8 U.S.C. § 1252(f)(2) applies only to permanent prohibitions of removal and not to motions to stay the execution of a removal order, and we are persuaded by the reasoning in those opinions to reject the Eleventh Circuit's "clear and convincing evidence" requirement. We also agree with the Ninth Circuit that the "clear and convincing evidence" standard is inapplicable to motions to stay removal pending judicial review of the underlying petition. See Andreiu, 253 F.3d at 480-83. As 8 U.S.C. § 1252(b)(3)(B), which in effect requires petitioners subject to a removal order to affirmatively seek a stay of removal from the reviewing court, provides no standard for reviewing such motions to stay removal, we will apply the traditional standard for reviewing a motion to stay an administrative agency order pending judicial review of the underlying...