Torres De La Cruz v. Maurer
Decision Date | 03 April 2007 |
Docket Number | No. 06-9515.,06-9515. |
Citation | 483 F.3d 1013 |
Parties | Miguel Angel TORRES DE LA CRUZ, Petitioner-Appellant, v. Douglas MAURER, District Director, United States Immigration and Naturalization Service, Denver, Colorado,<SMALL><SUP>*</SUP></SMALL> and Alberto R. Gonzales, Attorney General, Respondents-Appellees. |
Court | U.S. Court of Appeals — Tenth Circuit |
v.
Douglas MAURER, District Director, United States Immigration and Naturalization Service, Denver, Colorado,* and Alberto R. Gonzales, Attorney General, Respondents-Appellees.
[483 F.3d 1015]
Submitted on the Briefs:**
Jim Salvator, Lafayette, CO, for Petitioner-Appellant.
William J. Leone, United States Attorney, and Mark S. Pestal, Assistant United States Attorney, for Respondents-Appellees.
[483 F.3d 1016]
Before TACHA, Chief Judge, HARTZ, and TYMKOVICH, Circuit Judges.
TYMKOVICH, Circuit Judge.
Miguel Angel Torres de la Cruz (Torres), a native and citizen of Mexico, was admitted into the United States as a lawful permanent resident on October 30, 1992. After an August 6, 1999 state court conviction in Utah for possession of a controlled substance (cocaine), the then-Immigration and Naturalization Service (INS)1 initiated removal proceedings against him in December 1999. He was found to have committed a removable offense and ordered removed.
In this appeal, Torres asserts four claims: (1) his state conviction is not a controlled substance offense under the recent holding in Salinas v. United States, 547 U.S. 188, 126 S.Ct. 1675, 164 L.Ed.2d 364 (2006), and thus does not constitute a removable offense; (2) his state misdemeanor conviction for possession cannot constitute an aggravated felony within the meaning of the Immigration and Nationality Act (INA); (3) the immigration court's interpretation of 8 U.S.C. § 1229b(d)(1), the so-called "stop-time" rule, violates his right to due process and equal protection; and (4) his removal proceedings violate the Vienna Convention and an INS regulation on consular notification rights.
Lacking jurisdiction over Torres's first two claims, we DISMISS them. While retaining jurisdiction over his remaining two claims, we find they lack merit, DENY the petition for review, and AFFIRM the order of removal.
This case began in December of 1999 when the INS charged that Torres was removable for committing an "aggravated felony" under 8 U.S.C. § 1227(a)(2)(A)(iii), and a "controlled substance" violation under 8 U.S.C. § 1227(a)(2)(B)(i), based on his Utah state guilty plea to simple possession of cocaine in August of 1999. During his removal hearings, the INS dropped the "aggravated felony" count as a basis for removal. On February 7, 2000, an immigration judge (IJ) found that Torres had a "controlled substance" conviction and was removable under § 1227(a)(2)(B)(i), determined that he was ineligible for cancellation of removal, and ordered him removed to Mexico. On appeal, the Board of Immigration Appeals (BIA) considered Torres's challenges to the IJ decision and found them to be without merit in an order dated August 16, 2000.
On September 1, 2000, a Utah sentencing court modified Torres's conviction from a felony to a misdemeanor. Based on the state court's action, on September 29, 2000,2 Torres filed a motion to reopen the proceedings with the BIA to challenge his removability. The BIA denied the motion as without merit on February 8, 2001.
Because he was in custody, Torres filed a habeas action in U.S. District Court for the District of Colorado on August 21, 2000. While the habeas petition was initiated prior to the BIA's denial of his motion to reopen, Torres later amended his petition to include the arguments presented before the BIA in his motion to reopen. The case was later held in abeyance pending the Supreme Court's decision in INS v.
St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001).
In January 2006, the case was transferred to this court and converted to a petition for review pursuant to the REAL ID Act of 2005, Pub.L. No. 109-13, Div. B, § 106(a), (c), 119 Stat. 231, 310 (2005).
Before addressing Mr. Torres's claims, our threshold inquiry is whether we have jurisdiction to consider this appeal. Congress has provided an avenue for direct review of final orders of removal through petitions for review in courts of appeals. 8 U.S.C. § 1252(a)(1); Berrum-Garcia v. Comfort, 390 F.3d 1158, 1162 (10th Cir. 2004). Indeed, "petitions for review filed with the court of appeals are the sole and exclusive means of review of most administrative orders of removal." Ferry v. Gonzales, 457 F.3d 1117, 1131 (10th Cir.2006) (internal quotation omitted).
Although Torres failed to file a petition for review within thirty days of either of the BIA's final orders of removal as required by 8 U.S.C. § 1252(b)(1), the REAL ID Act cures this defect. Torres's appeal is premised on his habeas petition filed in the district court under 28 U.S.C. § 2241. The REAL ID Act directs that habeas petitions (1) challenging a final order of removal, and (2) which were pending in the district courts before the effective date of the REAL ID Act, like Torres's, are to be transferred to the appropriate court of appeals as a petition for review under § 1252 notwithstanding the failure to comply with § 1252(b)(1)'s thirty-day requirement. Pub.L. No. 109-13, Div. B at § 106(c), 119 Stat. at 310 ("The court of appeals shall treat the transferred case as if it had been filed pursuant to a petition for review under such section 242, except that subsection (b)(1) [the thirty-day deadline] of such section shall not apply."); see Schmitt v. Maurer, 451 F.3d 1092, 1095 (10th Cir.2006).
Here, the BIA ordered Torres removed on August 16, 2000. Torres then timely filed his habeas petition challenging that final order of removal in the district court on August 21, 2000. The district court later granted his motion to amend the habeas petition to include arguments considered by the BIA in its denial of the motion to reopen on November 14, 2000. These arguments therefore fall within the language of the transfer provision.3 The habeas petition is therefore considered a petition for review over both BIA decisions and our jurisdiction is found under 8 U.S.C. § 1252. See Schmitt, 451 F.3d 1092, 1094-95.
Notwithstanding the foregoing, we only retain jurisdiction over claims challenging a final order of removal "if the alien has exhausted all administrative remedies available ... as of right." 8 U.S.C. § 1252(d)(1). We have recognized that "[n]eglecting to take an appeal to the BIA constitutes a failure to exhaust administrative remedies as to any issue that could have been raised, negating the jurisdiction necessary for subsequent judicial review." Soberanes v. Comfort, 388 F.3d 1305, 1308-09 (10th Cir.2004). Accordingly, we have jurisdiction only over those claims that were presented to the BIA and were properly appealed to this court through Torres's habeas petition.
Under this framework, we are deprived of jurisdiction over Torres's first two claims.
A. Controlled Substance Offense
Torres's first claim challenges whether his drug possession conviction is a "removable offense" after Salinas, 547 U.S. 188, 126 S.Ct. 1675, 164 L.Ed.2d 364 (2006). Salinas holds that a conviction for simple possession of a controlled substance is not a "controlled substance offense" for purposes of the United States Sentencing Guidelines because the Guidelines expressly define the offense to require a trafficking element. 547 U.S. at 188, 126 S.Ct. 1675. Considering that Salinas was decided more than five years after his agency proceedings were completed, Torres obviously could not have invoked Salinas in the first instance before the BIA.
In his motion to reopen, however, Torres generally charged that the reclassification of his state conviction as a misdemeanor renders the offense incapable of serving as a basis of removal under 8 U.S.C § 1227(a)(2)(B)(i). He argued that the offense fell under the "functional equivalent" of the Federal First Offender Act4 and that the "offense is not a deportable offense." A.R. at 15. Nevertheless, where a specific issue was not addressed in administrative proceedings in the manner it is now addressed before us, general statements in the notice of appeal to the BIA are insufficient to constitute exhaustion of administrative remedies. See Ramani v. Ashcroft, 378 F.3d 554, 560 (6th Cir.2004). Accordingly, Torres's broad assertions in his motion to reopen are not sufficient to exhaust the issue. Torres did not ask the BIA to consider, nor did the BIA analyze, whether the conviction for a "controlled substance offense" in the removal context is analogous to the Sentencing Guidelines' definition requiring a trafficking element.
Torres's failure to exhaust this issue precludes our jurisdiction and we dismiss the claim without reaching the merits.
B. Aggravated Felony
Torres's second argument is that he was not convicted of an "aggravated felony," thereby preserving his eligibility for cancellation of removal under 8 U.S.C. § 1229b(a). The record makes clear that this issue was never presented to the BIA, which divests us of jurisdiction.
C. Torres's Other Claims
Since they were presented to the BIA, Torres's final two claims survive the procedural bar of exhaustion. Nevertheless, they must still withstand other limits to our subject matter jurisdiction. Congress has eliminated judicial review of (1) BIA discretionary decisions, 8 U.S.C. § 1252(a)(2)(B), as well as (2) any "final order of removal against an alien who is removable by reason of having committed" certain offenses, among them controlled substance offenses, 8 U.S.C. § 1252(a)(2)(C).
These broad jurisdiction-stripping provisions are subject to two exceptions. First, as an Article III court, we have inherent jurisdiction "to determine whether the jurisdictional bar applies. We may therefore decide whether the petitioner is (i) an alien (ii) deportable (iii) by reason of a criminal offense listed in the statute." Latu v. Ashcroft, 375 F.3d 1012, 1017 (10th Cir.2004) (internal...
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