Brian Davis v. Attorney General United States ( 2017 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 16-3782
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BRIAN ANTHONY DAVIS,
a/k/a Stamma Unknown,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
__________________________________
On a Petition For Review of an Order
of the Board of Immigration Appeals
(Agency No. A029-574-329)
Immigration Judge: Walter A. Durling
__________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 16, 2017
Before: GREENAWAY, JR., GREENBERG and ROTH, Circuit Judges
(Opinion filed: November 20, 2017)
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OPINION*
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PER CURIAM
Brian Anthony Davis petitions for review of the Board of Immigration Appeals’
final order of removal. For the reasons that follow, we will deny the petition.
Davis, a native and citizen of Jamaica, was admitted to the United States as a
lawful permanent resident in May, 1982. As a young man, Davis went to work for a
criminal drug organization. Following a jury trial in 1993 in the United States District
Court for the Northern District of Texas, he was convicted of conspiracy to possess with
intent to distribute and distribution of 5 kilograms or more of cocaine and 50 grams or
more of crack cocaine, in violation of 21 U.S.C. § 846. The Fifth Circuit Court of
Appeals affirmed the criminal judgment, see United States v. Stevens, 1995 WL 337792
(5th Cir. May 24, 1995). In June, 2008, Davis’ sentence was reduced to 360 months
pursuant to Amendment 505. After that, his sentence was further reduced to 324 months
(27 years) pursuant to Amendment 706. Davis currently is in immigration custody.
In March, 2015, the Department of Homeland Security sought Davis’ removal
from the United States on six different bases: as an alien convicted of a controlled
substance offense, 8 U.S.C. § 1227(a)(2)(B)(i); as an alien convicted of aggravated
felonies as defined by Immigration & Nationality Act (“INA”) §§ 101(a)(43)(B) (drug
trafficking), (U) (conspiracy to commit “an offense described in this paragraph”), (D)
(money laundering), & (G) (theft or burglary for which the term of imprisonment is at
least one year), 8 U.S.C. § 1227(a)(2)(A)(iii); and as an alien convicted of two or more
crimes involving moral turpitude, 8 U.S.C. § 1227(a)(2)(A)(ii). Davis applied for
protection under the Convention Against Torture, claiming that he will be tortured by
criminal gangs in Jamaica, and tortured by authorities because he is a criminal returnee.
He submitted background evidence in support of his application for CAT protection.
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On May 10, 2016, the Immigration Judge concluded that Davis’ conviction for
conspiracy to distribute cocaine and crack cocaine in violation of 21 U.S.C. § 846
constituted an aggravated felony as defined by INA §§ 101(a)(43)(B) (drug trafficking)
and 101(a)(43)(U) (conspiracy to commit “an offense described in this paragraph”), and
noted that Davis had withdrawn his application for CAT protection. The IJ ordered that
Davis be removed from the United States to Jamaica.
Davis appealed to the Board of Immigration Appeals. He argued that his Northern
District of Texas Judgment of Conviction was insufficient to prove that he had committed
an aggravated felony, and that the evidence presented at his trial was unreliable and based
on false information. The Board rejected this contention, concluding that the conviction
records correctly reflected the facts, and that, unless the criminal judgment was void on
its face, and it was not, the agency could not “go behind” the judicial record to reevaluate
Davis’ guilt or innocence. Davis also made an argument based on Judulang v. Holder,
132 S. Ct. 476 (2011), and the Administrative Procedures Act, but the Board rejected it as
inapposite because Davis’ lengthy incarceration rendered him statutorily ineligible for §
212(c) relief under the 1990 Amendment to the INA. The Board further held that Davis
was ineligible for all forms of discretionary relief except deferral of removal under the
CAT and agreed with the IJ that Davis did not establish eligibility for protection under
the CAT. The Board dismissed the appeal on September 19, 2016.
Davis has petitioned for review. A motions panel of this Court previously denied
his motion for a stay of removal. Where the petitioner’s removal order is based on a
conviction for an aggravated felony, review is limited to colorable constitutional claims
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and questions of law. See 8 U.S.C. § 1252(a)(2)(C)-(D); Green v. Att’y Gen. of U.S.,
694 F.3d 503, 506 (3d Cir. 2012). Davis does not challenge in his pro se brief the
Board’s determination that his conviction for conspiracy to distribute cocaine and crack
cocaine, in violation of 21 U.S.C. § 846, categorically constitutes an aggravated felony.
Accordingly, any such challenge is waived. See Fed. R. App. P. 28(a)(7)-(8). Davis does
not argue that he is eligible for CAT protection in his pro se brief, and, therefore, any
such challenge is waived. Id.
We will deny the petition for review. Davis has argued, as he did before the
Board, that the evidence used to convict him of a conspiracy to distribute illegal drugs
was false and unreliable, see Petitioner’s Brief, at 14, 17-18, but he may not collaterally
attack a criminal judgment in removal proceedings. His Northern District of Texas
criminal judgment, which correctly reflects the fact of his conviction and which has never
been overturned, is final for immigration purposes and cannot be challenged. See Drakes
v. Immigration & Naturalization Serv., 330 F.3d 600, 604-05 (3d Cir. 2003). See also
Orabi v. Att’y Gen. of U.S., 738 F.3d 535, 543 (3d Cir. 2014) (conviction final for
immigration purposes after direct appellate review has been exhausted); Paredes v. Att’y
Gen. of U.S., 528 F.3d 196, 198-99 (3d Cir. 2008) (pendency of post-conviction motions
or other forms of collateral attack do not negate finality of conviction for immigration
removal purposes “unless and until the convictions are overturned as a result of the
collateral motions.”).
Davis further argues that the Board should have used the circumstance-specific
approach to look beyond the statute of conviction, 21 U.S.C. § 846, to determine whether
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he actually committed the drug trafficking conspiracy conduct at issue and is thus
removable. See Petitioner’s Brief, at 20-25. Davis’ argument is without merit. In
Nijhawan v. Holder, 557 U.S. 29, 37 (2009), the Supreme Court reviewed the various
INA “definitions” of an aggravated felony. The Court noted that some of those
definitions referred to generic crimes such as murder and rape, see, e.g., 8 U.S.C. §
1101(a)(43)(A), while others did not and instead included language related to specific
circumstances, for example, § 1101(a)(43)(P) involving the forging of passports and
visas. The Supreme Court specifically listed the aggravated felony definition at issue
here, illicit trafficking in a controlled substance, 8 U.S.C. § 1101(a)(43)(B), as a generic
crime. Nijhawan, 557 U.S. at 37. Davis is therefore removable as an aggravated felon.
Davis next argues that, even if he is removable, he is eligible to apply for § 212(c)
waiver, see Petitioner’s Brief, at 25-40. Relief under former INA § 212(c) remains
generally available to an alien whose removal is based on a conviction entered before
Congress repealed that section in 1996. See Immigration & Naturalization Service v. St
Cyr, 533 U.S. 289, 326 (2001); Matter of Abdelghany, 26 I.&N. Dec. 254 (BIA 2014)
(lawful permanent resident convicted in 1995 of conspiracy to commit arson and who
was sentenced to 24-month term of imprisonment is eligible to apply for § 212(c)
waiver). In 1990, however, Congress amended § 212(c) to bar discretionary relief to
those convicted of an aggravated felony who had served a term of imprisonment of at
least five years. Abdelghany, 26 I.&N. Dec. at 257. We agree with the Board that Davis’
lengthy incarceration renders him statutorily ineligible for relief under former § 212(c)
pursuant to the 1990 amendment. See Lupera-Espinosa v. Att’y Gen. of U.S., 716 F.3d
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781, 788 (3d Cir. 2013) (“The language of the 1990 Amendment is unequivocal[.]”).
Judulang, which invalidated as arbitrary and capricious the Board’s “statutory counterpart
rule,” 132 S. Ct. at 490, does not create any right that Davis might exercise to remain in
the United States. At the time that Davis filed his application for relief, Congress had
already amended the statute to bar to bar discretionary relief to those convicted of an
aggravated felony who had served a term of imprisonment of at least five years. See
Scheidemann v. Immigration & Naturalization Serv., 83 F.3d 1517, 1518 (3d Cir. 1996).
Davis’ argument that the 1990 Amendment is impermissibly retroactive as applied to
him, see Petitioner’s Brief , at 41-47, is meritless, see Scheidemann, 83 F.3d at 1520-23.
Accordingly, the Board did not err in concluding that Davis is ineligible for a § 212(c)
waiver of removal.
For the foregoing reasons, we will deny the petition for review.
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