Smith v. Atty Gen USA , 172 F. App'x 465 ( 2006 )


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  •                                                                                                                            Opinions of the United
    2006 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    3-30-2006
    Smith v. Atty Gen USA
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 04-4339
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    http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1366
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    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    NO. 04-4339
    ________________
    VIRGIL EDWARD SMITH,
    Petitioner
    v.
    ATTORNEY GENERAL OF THE UNITED STATES*,
    Respondent
    _______________________________________
    On Petition for Review of a Decision of the
    Board of Immigration Appeals
    (Agency No. A34 308 874)
    Immigration Judge: Honorable Walter A. Durling
    _______________________________________
    Submitted Under Third Circuit L.A.R. 34.1(a)
    March 3, 2006
    BEFORE: MCKEE, FUENTES AND NYGAARD, CIRCUIT JUDGES
    (Filed: March 30, 2006)
    _______________________
    OPINION
    _______________________
    PER CURIAM
    Virgil Edward Smith petitions for review of a final order of removal issued by the
    Board of Immigration Appeals (BIA). The government moves to dismiss Smith’s petition
    *
    Caption amended pursuant to Rule 43(c), Fed. R. App. P.
    for review for lack of jurisdiction. For the following reasons, we conclude that we have
    jurisdiction in this matter and will deny the petition for review.
    Smith, a native of Trinidad and Tobago, was admitted to the United States in 1973
    as a lawful permanent resident. In 1994, Smith pleaded guilty in New York to criminal
    possession of a weapon in the third degree, and was sentenced to three to six years in
    prison. In 1997, Smith pleaded guilty in New York to criminal sale of a controlled
    substance (crack cocaine) in the fifth degree, and was sentenced to two to four years.
    Based on these convictions, the government charged Smith in May 2004 with
    removability for having been convicted of an aggravated felony, a controlled substance
    offense, and a firearm offense. The IJ found Smith removable as charged and ineligible
    to apply for a waiver of removal under former § 212(c) of the Immigration and
    Nationality Act (INA). On appeal, the BIA concluded that Smith’s 1997 conviction for
    selling crack cocaine constitutes an aggravated felony and that he is ineligible to apply for
    § 212(c) relief.
    In November 2004, Smith challenged the BIA’s order by filing a timely petition
    for review in this Court. In February 2005, after Smith filed his opening brief, the
    government moved to dismiss the petition for review for lack of jurisdiction on the
    ground that Smith is removable for having committed certain criminal offenses. When
    the government filed its motion to dismiss, we lacked jurisdiction to review a final order
    of removal against an alien who is removable for having been convicted of criminal
    offenses, including an aggravated felony, a controlled substance offense, and certain
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    firearm offenses. See 
    8 U.S.C. § 1252
    (a)(2)(C); Douglas v. Ashcroft, 
    374 F.3d 230
    , 235
    (3d Cir. 2004). Effective May 11, 2005, the REAL ID Act restored our jurisdiction to
    review “constitutional claims and questions of law raised upon a petition for review” filed
    by an alien who is removable for having been convicted of criminal offenses. 
    8 U.S.C. § 1252
    (a)(2)(D); see Papageorgiou v. Gonzales, 
    413 F.3d 356
    , 358 (3d Cir. 2005). Under
    the REAL ID Act, we have jurisdiction to review the questions of law raised in Smith’s
    petition for review. Accordingly, we deny the government’s motion to dismiss.
    We will also deny Smith’s petition for review on the merits. Without question,
    Smith’s 1997 conviction for criminal sale of crack cocaine constitutes a controlled
    substance offense under § 1227(a)(2)(B)(i). Additionally, his 1994 conviction for
    criminal possession of a weapon readily constitutes a qualifying firearm offense under
    § 1227(a)(2)(C). For having been convicted of these offenses, Smith is removable.
    The question remains, however, whether the BIA correctly ruled that Smith is not
    eligible to apply for a waiver of removal under former § 212(c) of the INA. Prior to the
    enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) on
    April 24, 1996, the Attorney General had discretion to waive deportation of lawful
    permanent residents such as Smith. Section 440(d) of the AEDPA amended § 212(c) to
    prohibit waivers to lawful permanent residents convicted of aggravated felonies. See
    Perez v. Elwood, 
    294 F.3d 552
    , 556-57 (3d Cir. 2002). The Illegal Immigration Reform
    and Immigrant Responsibility Act (IIRIRA) then took effect on April 1, 1997, which
    repealed § 212(c) altogether and replaced it with cancellation of removal under § 240A.
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    Id. at 557. Even so, an alien who pleaded guilty prior to April 1, 1997, and who was
    eligible for § 212(c) relief at the time he pleaded guilty, remains eligible to apply for
    § 212(c) relief, notwithstanding his disqualifying conviction. See INS v. St. Cyr, 
    533 U.S. 289
    , 326 (2001); 
    8 C.F.R. § 1212.3
    (h)(2).
    The question in Smith’s case, then, is whether he was eligible to apply for § 212(c)
    relief when he pleaded guilty on March 25, 1997, just a few days before § 212(c) was
    repealed. The answer to this question turns on whether Smith’s 1997 conviction
    constitutes an aggravated felony. If so, he never was eligible to apply for a § 212(c)
    waiver – § 440(d) of the AEDPA expressly prohibited it as of April 24, 1996.
    We agree with the BIA that Smith’s conviction for criminal sale of crack cocaine
    constitutes an aggravated felony. The INA defines an aggravated felony (for relevant
    purposes) as “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).” 
    8 U.S.C. § 1101
    (a)(43)(B). A state drug conviction constitutes an aggravated felony under
    the “illicit trafficking route” if the conviction is a felony under state law and encompasses
    a trafficking element. Gerbier v. Holmes, 
    280 F.3d 297
    , 305-06 & 307 n.7 (3d Cir. 2002).
    The trafficking element is present if the offense involves “the unlawful trading or dealing
    of a controlled substance.” 
    Id. at 305
    . Absent a trafficking element, a state drug
    conviction is nonetheless an aggravated felony as a “drug trafficking crime” if it
    constitutes a “hypothetical federal felony.” Gerbier, 
    280 F.3d at 315
    . Under the
    hypothetical federal felony approach, we determine whether the state drug conviction
    4
    would be punishable as a felony under an analogous federal statute. 
    Id.
    The BIA determined that Smith’s conviction does not constitute “illicit trafficking
    in a controlled substance” but that it is a “drug trafficking crime” under the hypothetical
    federal felony approach. As the BIA explained, under New York law, “selling” includes
    any form of transfer, even a gratuitous transfer, of a controlled substance from one person
    to another. See People v. Starling, 
    650 N.E.2d 387
    , 390 (N.Y. 1995). The BIA reasoned
    that because “selling” under New York law does not necessarily include a trafficking
    element, Smith’s conviction is not an illicit trafficking offense.
    Whether the BIA’s decision on this issue is correct presents an interesting
    question, but one we need not resolve in the current matter. After ruling that Smith’s
    conviction does not constitute illicit trafficking, the BIA properly considered whether his
    conviction is a drug trafficking crime under the hypothetical federal felony approach.
    Here, the BIA correctly identified the analogous federal felony as distribution of a
    controlled substance under 
    21 U.S.C. § 841
    (a)(1). See Wilson v. Ashcroft, 
    350 F.3d 377
    ,
    381 (3d Cir. 2003). Under this approach, Smith’s 1997 conviction constitutes a drug
    trafficking crime and thus an aggravated felony under § 1101(a)(43)(B). It follows that
    Smith was not eligible to apply for a § 212(c) waiver at the time he pleaded guilty to an
    aggravated felony.
    Finally, Smith asserts that he is a national of the United States because he served in
    the military. The BIA correctly rejected this contention. A national is either a citizen of
    the United States, or “a person who, though not a citizen of the United States, owes
    5
    permanent allegiance to the United States.” 
    8 U.S.C. § 1101
    (a)(22). For a citizen of
    another country, “nothing less than citizenship will show ‘permanent allegiance to the
    United States.’” Salim v. Ashcroft, 
    350 F.3d 307
    , 310 (3d Cir. 2003). Smith’s prior
    military service, without more, does not render him a citizen or national of the United
    States. See Marquez-Almanzar v. INS, 
    418 F.3d 210
    , 216-18 (2d Cir. 2005).
    For these reasons, we will deny Smith’s petition for review.
    6