G.S. v. Holder, No. 09-9526 (10th Cir. 4/15/2010)
| Decision Date | 15 April 2010 |
| Docket Number | No. 09-9526.,09-9526. |
| Parties | G.S., Petitioner, v. ERIC H. HOLDER, JR., United States Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Before KELLY, PORFILIO, and O'BRIEN, Circuit Judges.
Petitioner G.S., a citizen of Mexico, seeks review of a Final Administrative Removal Order issued by the Department of Homeland Security. For the reasons that follow, we take jurisdiction under 8 U.S.C. § 1252(a), and we deny the petition.
Petitioner entered the United States in 1991 without inspection. In 1993 he was convicted in California state court for Possession/Purchase of a Controlled Substance for Sale, which was cocaine, and sentenced to 150 days in jail and two years' probation. After his release, petitioner continued to live in the United States illegally. He was arrested in 2009 on a concealed-weapons charge and eventually released into the custody of the Bureau of Immigration and Customs Enforcement (ICE). On March 25, 2009, while in ICE custody, the Department of Homeland Security (DHS) served him with a Notice of Intent to Issue a Final Administrative Removal Order (NOI). In the NOI, DHS claimed that petitioner's 1993 cocaine conviction was an "aggravated felony" as defined in 8 U.S.C. § 1101(a)(43)(B): "illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18)." Accordingly, DHS alleged petitioner was removable under 8 U.S.C. § 1227(a)(2)(A)(iii), which provides that "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable."1
The NOI was issued pursuant to 8 U.S.C. § 1228(b). As relevant to petitioner, § 1228(b) provides that, in the case of an alien who "was not lawfully admitted for permanent residence" when § 1228(b) proceedings commenced, and who has been convicted of an aggravated felony, "[t]he Attorney General may . . . determine [his] deportability . . . under section 1227(a)(2)(A)(iii) . . . and issue an order of removal pursuant to the procedures set forth in this subsection or [8 U.S.C. §] 1229a." 8 U.S.C. § 1228(b). There are a number of distinctions between the removal procedures under § 1228(b) and § 1229a, two of which are relevant here. First, proceedings under § 1228 involve an expedited determination of removability by an immigration service officer, see generally 8 C.F.R. § 238.1, whereas an immigration judge (IJ) conducts removal proceedings under § 1229a, see 8 U.S.C. § 1229a(a)(1). Second, an alien in § 1228(b) proceedings is not eligible for any discretionary relief from removal. See 8 U.S.C. § 1228(b)(5).
In signing the NOI's certificate of service, petitioner marked a box requesting withholding or deferral of removal under 8 U.S.C. § 1231(b)(3) () and under the United Nations Convention Against Torture (CAT). As permitted by 8 C.F.R. § 238.1(c), he filed a timely response to the NOI on April 2, 2009,2 requesting the evidence against him, including the charging document from the 1993 cocaine conviction, in order to determine whether to challenge DHS's position that the conviction falls within the statutory definition of an aggravated felony. He also reiterated his intent to seek restriction on removal and CAT relief, and he objected to his detention.
On April 13, 2009, ICE served petitioner with a copy of the Final Administrative Removal Order (FARO), which ordered him removed to Mexico. Three days later, petitioner filed an emergency motion to rescind the FARO on the grounds that the government had not responded to his request for the evidence against him and that an examination of the record of conviction was necessary in order to challenge whether his 1993 conviction was an aggravated felony. He also requested to be placed in removal proceedings under § 1229a instead of § 1228(b), on the ground that he was not an alien described under § 1228(b). Petitioner claims that on the same day, ICE sent the evidence against him. The record contains no ruling on the motion to rescind.
On May 12, 2009, twenty-nine days after issuance of the FARO, petitioner filed the present petition for review. Also on that date, he received a reasonable-fear hearing before an asylum officer based on his expressed fear of persecution or torture if he were removed to Mexico. See generally 8 C.F.R. § 208.31 (). The asylum officer determined that petitioner established a reasonable fear of torture and referred the matter to an IJ pursuant to 8 C.F.R. § 208.31(e) for full consideration of petitioner's request for relief from removal. That regulation permits an IJ to consider a § 1228(b) alien's request for restriction on removal and CAT relief, but not the validity of the underlying FARO. On December 7, 2009, after a hearing, the IJ denied relief. Petitioner waived review of the IJ's decision by the Board of Immigration Appeals (BIA or Board) that is available under 8 C.F.R. § 208.31(e), and on December 10, 2009, he was removed to Mexico.
In his petition for review and supporting briefs, petitioner challenged his placement in § 1228(b) expedited removal proceedings on the ground that he is not an alien described in § 1228(b). He also claimed he was denied due process when DHS issued the FARO without providing him an opportunity to challenge whether his 1993 conviction qualifies as an aggravated felony. He further contested his detention.
In a response brief, respondent claimed we lack jurisdiction over the FARO, arguing that petitioner's pursuit of administrative relief from removal through the reasonable-fear hearing process rendered the FARO a nonfinal order of removal. Respondent also challenged venue and, in the alternative, contested each of petitioner's substantive arguments.
In view of the jurisdictional issue, we abated the petition for review until the reasonable-fear proceedings ended. After those proceedings concluded, we reinstated the petition and ordered supplemental briefs regarding whether petitioner's removal mooted his petition for review. We also requested that the parties supplement the record provided to the court. These matters are complete, so we turn to the issues.
As discussed below, we first assume, without deciding, that petitioner's pursuit of administrative relief from the FARO rendered the FARO nonfinal at the time he filed his petition for review, and we conclude that completion of the reasonable-fear process cured any jurisdictional defect in the petition due to prematurity. We then conclude that petitioner exhausted his administrative remedies regarding the procedural safeguards afforded under § 1228(b) by timely filing a request for the evidence against him. We next hold that venue is proper and that petitioner's removal has not mooted his petition. Finally, on the merits, we conclude that respondent issued the FARO before providing petitioner with the evidence against him and an opportunity to challenge whether his conviction qualifies as an aggravated felony, but further conclude that the error was harmless because the conviction qualifies as a "drug trafficking crime (as defined in section 924(c) of Title 18)" under 8 U.S.C. § 1101(a)(43)(B). Finally, we reject petitioner's argument that it was improper to place him in expedited removal proceedings under § 1228(b) because he is not an alien described in that statute.
This court's jurisdiction over a petition for review of a removal order is limited to "a final order of removal." 8 U.S.C. § 1252(a)(1). Congress has provided two contingencies by which a removal order can become final—when either (1) the Board affirms an order determining that an alien is removable or (2) upon "the expiration of the period in which the alien is permitted to seek review of such order by the Board," whichever is earlier. 8 U.S.C. § 1101(a)(47)(B). Both contingencies depend upon the availability of BIA review, but a FARO is not appealable to the BIA—review lies only with the courts of appeals. See 8 U.S.C. § 1228(b)(3) (); id. § 1252(a)(1), (a)(5) (). Because there is no opportunity for BIA review, neither of the contingencies in § 1101(a)(47)(B) can occur. Thus, the statutory definition of finality provides no helpful guidance in determining whether the pursuit of administrative relief from removal via a reasonable-fear proceeding renders a FARO nonfinal until the administrative proceedings have concluded. Indeed, respondent concedes that had petitioner not sought further administrative remedies in the form of restriction on removal and CAT relief, the FARO would have been final and appealable directly to this court at the time it was issued. See Resp. Br. at 19 & n.7. Thus, there is nothing inherently nonfinal about the FARO itself, and its title ("Final Administrative Removal Order") suggests finality.
Nevertheless, respondent argues that the FARO was not final because, under 8 C.F.R. §§ 208.5(a) and 1003.6(a), it could not have been executed while petitioner's restriction and CAT claims remained the subject of administrative proceedings. Respondent also contends that completion of the administrative proceedings did not cure the FARO's nonfinality because the petition for review was a nullity at the time it was filed. Instead, respondent maintains, the FARO became final only when petitioner waived BIA review of the IJ's adverse decision on his claims for relief from...
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