Triumph v. Holder , 314 F. App'x 725 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 16, 2009
No. 07-60114
Summary Calendar Charles R. Fulbruge III
Clerk
PATRICK ANTHONY TRIUMPH
Petitioner
v.
ERIC H. HOLDER JR, U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A36 707 208
Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Patrick Anthony Triumph, a native and citizen of Guyana, first entered
the United States on August 8, 1982. On January 19, 1990, Triumph was
convicted of writing bad checks in the third degree after pleading guilty in state
court in New Jersey, and he was sentenced to one year of probation. On
September 29, 1994, Triumph pleaded guilty to first degree larceny in
Connecticut state court and received a five-year prison sentence.
*
Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5 TH C IR. R. 47.5.4.
No. 07-60114
In July 2002, Triumph traveled to Guyana. Triumph then traveled to
Canada, where he was arrested on a United States Marshal fugitive warrant.
On December 16, 2004, Triumph was convicted by a jury in federal court of 10
counts of aiding and abetting the preparation of false tax returns in violation of
26 U.S.C. § 7206(2), and the district court sentenced him to 33 months of
imprisonment.
On April 6, 2005, the Department of Homeland Security (DHS) served
Triumph with a notice to appear (NTA), charging that he was removable under
8 U.S.C. § 1182(a)(2)(A)(i)(I) as an alien inadmissible for his conviction of a crime
involving moral turpitude and under § 1182(a)(2)(B) as an alien inadmissible for
his conviction of two or more offenses for which the aggregate sentences to
confinement imposed were five years or more. The NTA also alleged that
Triumph was “an arriving alien.” After Triumph submitted documents showing
that his 2004 conviction for aiding and abetting false tax returns was on appeal
in the Second Circuit, DHS characterized the NTA as “improvidently issued”
with respect to the inclusion of the 2004 conviction as a ground for removal and
chose not to rely on that conviction as a basis for removability.
The immigration judge (IJ) ruled that Triumph was subject to removal
under § 1182(a)(2)(A)(i)(I) as an alien who committed a crime involving moral
turpitude and under § 1182(a)(2)(B) as an alien convicted of two or more offenses
for which the aggregate sentences to confinement were five years or more.
Triumph sought relief under former § 1182(c) pursuant to INS v. St. Cyr, 533
U.S. 289 (2001), but the IJ denied relief.
The Board of Immigration Appeals (BIA) agreed with Triumph that his
1990 conviction for writing bad checks did not constitute a basis for his
removability under § 1182(a)(2)(A)(i)(I) because the New Jersey statute under
which he was convicted did not require proof of any intent to defraud.
Nevertheless, the BIA ruled that Triumph remained removable under
§ 1182(a)(2)(A)(i)(I) on the basis of his 1994 conviction for larceny in the first
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No. 07-60114
degree and under § 1182(a)(2)(B) based on both his 1990 and 1994 convictions
because the sum of the sentences imposed for those convictions was five years.
Accordingly, the BIA dismissed Triumph’s appeal on August 10, 2006. Triumph
timely filed a petition for review of the BIA’s decision in the United States Court
of Appeals for the Second Circuit.
Triumph also timely filed a motion for reconsideration with the BIA, but
the BIA denied the motion for reconsideration on September 28, 2006. Triumph
then timely filed a petition for review of this ruling in the Second Circuit on
October 5, 2006.
On December 8, 2006, the Second Circuit ordered that Triumph’s petitions
for review be transferred to this court. On February 12, 2007, this court received
Triumph’s petitions and docketed them under Cause No. 07-60114.
Meanwhile, Triumph filed a “motion to reopen” with the BIA on
November 7, 2006. On January 3, 2007, the BIA construed the motion as a
second motion to reconsider and denied the motion as exceeding both time and
numerical limitations. The BIA stated that the motion “would also be properly
denied as a motion to reopen.” In June 2007, Triumph filed a motion in this
court seeking to file a petition for review of the BIA’s denial of this motion to
reopen, alleging that he timely filed such a petition for review in the Second
Circuit on January 23, 2007 but that the petition for review was not forwarded
to this court with the other petitions in January 2007 for unknown reasons.
On September 5, 2007, Triumph filed yet another motion to reopen with
the BIA. The BIA denied the motion on October 11, 2007, stating that it was,
“like its predecessor, both untimely and exceeding the numerical limitations for
motions to reopen.” Triumph timely filed a petition for review of the BIA’s
decision, which this court docketed under Cause No. 07-60881.
Triumph contends that the IJ and BIA lacked jurisdiction over his
“exclusion proceedings” because the IJ erroneously classified him as an “arriving
alien” or “applicant for admission” when he had in fact already been admitted.
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No. 07-60114
The Government concedes that Triumph’s challenge to his classification as an
arriving alien presents a question of law, which this court retains jurisdiction to
decide under § 1252(a)(2)(D) despite the otherwise applicable jurisdictional bars
in § 1252(a)(2)(B) and (C). However, Triumph did not present this claim to the
BIA, and our jurisdiction is therefore unclear. We pretermit these difficult
jurisdictional concerns because Triumph’s arguments are without merit. See
Madriz-Alvarado v. Ashcroft, 383 F.3d 321, 327-28 (5th Cir.2004).
Triumph’s classification claim is belied by 8 U.S.C. § 1101(a)(13)(C)(v),
which provides that “[a]n alien lawfully admitted for permanent residence in the
United States shall not be regarded as seeking an admission into the United
States for purposes of the immigration laws . . . unless the alien . . . has
committed an offense identified in section 1182(a)(2) of this title.” Triumph does
not dispute that his 1994 conviction for larceny was for a crime of moral
turpitude under § 1182(a)(2)(A)(i)(I). Therefore, the BIA properly “regarded
[Triumph] as seeking an admission into the United States” even though he had
previously been “law fu lly adm itted for perm anen t residence.”
§ 1101(a)(13)(C)(v).
Triumph contends that the BIA erred in upholding the IJ’s finding that he
was inadmissible. He argues that his prior convictions should not have been
used as the basis for finding him inadmissible because they were not final.
Under § 1252(a)(2)(C) and (D), we only have jurisdiction over the questions of
law and constitutional claims raised by Triumph. To the extent Triumph makes
a challenge to the factual basis for his removal, we dismiss his petition in part
for lack of jurisdiction. To the extent we have jurisdiction to address his
arguments, Triumph is not entitled to relief because a conviction remains
effective for immigration purposes even if a direct appeal is pending. See
Garcia-Maldonado v. Gonzales, 491 F.3d 284, 290 (5th Cir. 2007).
Triumph contends that his treatment in removal proceedings as an
arriving alien violated the terms of the extradition treaty between the United
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No. 07-60114
States and Canada, but because he never raised this claim before the BIA, we
lack jurisdiction to consider it. See § 1252(d)(1); Wang v. Ashcroft, 260 F.3d 448,
452-53 (5th Cir. 2001). Triumph has failed to brief any argument with respect
to his petition for review of the the BIA’s September 28, 2006 denial of his
motion for reconsideration, and he has thus abandoned the issue. See Soadjede
v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003) (citing Brinkmann v. Dallas County
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987)). Triumph argues that
the BIA’s October 11, 2007 denial of his motion to reopen was an abuse of
discretion because the BIA should have exercised its authority to reopen his case
sua sponte under 8 C.F.R. § 1003.2(a). We have no jurisdiction to review the
BIA’s refusal sua sponte to exercise its general authority to reopen or reconsider
a case under § 1003.2(a). Ramos-Bonilla v. Mukasey, 543 F.3d 216, 219-20 (5th
Cir. 2008). Because Triumph has otherwise failed to brief any argument against
the BIA’s October 11, 2007 denial of his motion to reopen, he has abandoned any
cognizable challenge to this ruling as well. See Soadjede, 324 F.3d at 833.
Because this case does not present exceptional circumstances, we deny
Triumph’s motion for appointment of counsel. See Ulmer v. Chancellor, 691 F.2d
209, 212 (5th Cir. 1982).
Triumph moves this court to file a petition for review of the BIA’s January
3, 2007 denial of his second motion to reopen, which he asserts was timely filed
in the Second Circuit. However, Triumph has failed to show that such a petition
was timely filed. See Townsend v. INS, 799 F.2d 179, 181 (5th Cir. 1986).
Accordingly, we deny the motion.
Triumph seeks leave to supplement the administrative record with copies
of documents reflecting the IJ’s ruling on his bond motion and challenge to his
status as an “arriving alien” as well as Triumph’s attempted interlocutory appeal
of that motion. However, we must “decide the petition [for review] only on the
administrative record on which the order of removal is based.” § 1252(b)(4)(A).
Accordingly, we deny this request.
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No. 07-60114
We also deny Triumph’s motion to compel production of the supplemental
administrative record, his motion for remand for correction of the
administrative, his motion for leave to supplement his motion to remand, and
his motion to expedite his motion for remand.
PETITIONS FOR REVIEW DISMISSED IN PART AND DENIED IN
PART; MOTIONS DENIED.
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