Daley v. Atty Gen USA , 261 F. App'x 421 ( 2008 )


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  •                                                                                                                            Opinions of the United
    2008 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    1-8-2008
    Daley v. Atty Gen USA
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 07-3295
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    Recommended Citation
    "Daley v. Atty Gen USA" (2008). 2008 Decisions. Paper 1785.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1785
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    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ___________
    No. 07-3295
    ___________
    DEON EARL DALEY,
    Petitioner
    v.
    ATTORNEY GENERAL OF THE UNITED STATES
    ____________________________________
    On Petition for Review of an Order
    of the Board of Immigration Appeals
    Agency No. A37 777 858
    Immigration Judge: Robert P. Owens
    ____________________________________
    Submitted Pursuant to Third Circuit LAR 34.1(a)
    January 2, 2008
    Before: SLOVITER, BARRY and WEIS, Circuit Judges
    (Opinion filed: January 8, 2008)
    ___________
    OPINION
    ___________
    PER CURIAM
    Deon Earl Daley petitions for review of an order of the Board of Immigration
    Appeals (BIA), which dismissed his appeal of an Immigration Judge’s (IJ’s) final
    removal order. We will deny the petition.
    Daley is a native and citizen of Jamaica. He entered the U.S. at the age of 8, in
    1982. He has several convictions, including a conviction in 1999 for criminal possession
    of a weapon. In removal proceedings, he applied for cancellation of removal, and argued
    that none of his convictions were valid. The Immigration Judge (IJ) determined that he
    was potentially eligible for cancellation, but denied relief as a matter of discretion,
    finding that Daley’s convictions outweighed the positive factors. On appeal, the Board of
    Immigration Appeals (BIA) agreed with the IJ that relief was not warranted in the
    exercise of discretion.
    We have jurisdiction to review “constitutional claims or questions of law” raised in
    this petition for review. INA § 242(a)(2)(D) [8 U.S.C. § 1252(a)(2)(D)]. However,
    pursuant to 8 U.S.C. § 1252(a)(2)(B), courts lack jurisdiction to review “any judgment
    regarding the granting of relief under section . . . 1229b . . . .” This Court has held that in
    reviewing decisions to deny cancellation of removal under § 1229b, the court retains
    jurisdiction to review nondiscretionary factors, but lacks jurisdiction to review
    discretionary decisions. Mendez-Moranchel v. Ashcroft, 
    338 F.3d 176
    , 178 (3d Cir.
    2003). As cancellation here was denied purely on a discretionary basis, we cannot review
    the decision.
    Daley’s brief mentions “due process” and “equal protection,” but it is difficult to
    discern what his claims are in this regard. From what we can understand, it appears that
    Daley is complaining that he was found to be removable on the basis of convictions that
    2
    he believes are not valid. We do not reach the merits of his claims, as a final conviction
    cannot be challenged in removal proceedings. See Vargas v. Department Of Homeland
    Security, 
    451 F.3d 1105
    , 1107 (10 th Cir. 2006); Giammario v. Hurney, 
    311 F.2d 285
    , 287
    (3d Cir. 1962); cf. Drakes v. INS, 
    330 F.3d 600
    , 606 (3d Cir.2003) (alien may not
    constitutionally challenge state court conviction in § 2241 petition).1
    To the extent Daley challenges his continued detention, that challenge would be
    properly brought in a habeas petition filed in District Court. Nnadika v. Attorney
    General, 
    484 F.3d 626
    , 632 (3d Cir. 2007). As Daley does not raise any other legal or
    constitutional issue that this court could review, we will deny the petition.
    1
    For this reason, Daley’s “Motion to Vacate Judgment” is denied. Daley’s “Motion to
    reconsider, vacate and modify the disposition Docket Number 99K076686,” is likewise
    denied.