Kenneth Rodolfo Copeland v. Atty Gen USA ( 2011 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-3027
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KENNETH COPELAND,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A041 570 587)
Immigration Judge: Honorable Andrew Arthur
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 14, 2011
Before: AMBRO, HARDIMAN and STAPLETON, Circuit Judges
(Opinion filed March 31, 2011)
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OPINION
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PER CURIAM
Kenneth Copeland, proceeding pro se, petitions for review of an order of the
Board of Immigration Appeals (“BIA”) dismissing his appeal from an Immigration
Judge’s (“IJ”) decision denying his application for cancellation of removal. For the
reasons that follow, we will deny the petition for review.
Copeland is a native and citizen of Panama. He came to the United States in 1987
at the age of 17 as a lawful permanent resident. In 2009, the Department of Homeland
Security issued a notice to appear charging that Copeland was subject to removal from
the United States because he was convicted of violating a law relating to a controlled
substance and because he was convicted of a firearms offense. The IJ found Copeland
removable as charged based on convictions in 2002 in Pennsylvania state court for
possession and possession with intent to deliver marijuana, and a 1991 conviction in
Pennsylvania state court for carrying firearms in public and without a license. Copeland
applied for cancellation of removal.1
The IJ found Copeland ineligible for cancellation of removal. Although Copeland
had been lawfully admitted for permanent residence for over five years and had resided
here continuously for seven years, the IJ concluded Copeland had not shown that he had
not been convicted of an aggravated felony. See 8 U.S.C. § 1229b(a) (setting forth
requirements for cancellation of removal for certain permanent residents). The IJ found
that Copeland’s conviction in 2002 in Pennsylvania state court for possessing marijuana
with the intent to deliver constitutes an aggravated felony.
The IJ further held that, even if Copeland had established that he had not been
1
Copeland was initially represented by counsel, who filed his application for
cancellation of removal. The IJ granted counsel’s motion to withdraw, in which counsel
requested permission to withdraw in order to avoid violating the Rules of Professional
Conduct. Copeland testified that he was unable to pay counsel’s fee.
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convicted of an aggravated felony and thus was statutorily eligible for cancellation of
removal, he did not show that he merits cancellation of removal in the exercise of
discretion. The IJ recognized several positive factors in Copeland’s case, including that
he has extensive family living in the United States, that he has resided here for 22 years
and since he was 17 years old, and that he would suffer from a loss of contact with his
siblings. The IJ also found that Copeland’s employment history was a positive factor.
The IJ accepted two letters vouching for Copeland’s good character and believed that
Copeland is genuinely sorry for his crimes.
The IJ further found that Copeland’s numerous arrests over the years were
negative factors weighing against relief from removal. The IJ considered Copeland’s
drug offense serious in light of the amount of drugs involved and his association with a
drug dealer. The IJ also noted Copeland’s long-term drug use and found his firearms
offense to be a significant adverse factor. The IJ recognized that Copeland’s offenses
occurred over a 12-year period but concluded that his criminal history was a significant
adverse factor. The IJ decided that Copeland’s criminal history outweighed his extensive
presence and family ties in the United States and noted that his parents and grandmother
live in Panama.
The BIA dismissed Copeland’s appeal. The BIA rejecting Copeland’s challenge
to the IJ’s finding that his drug offense constitutes an aggravated felony, which renders
him ineligible for cancellation of removal. The BIA also noted that Copeland had not
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challenged on appeal the IJ’s alternate decision that he would deny cancellation of
removal in the exercise of discretion if Copeland were eligible for this form of relief.
This petition for review followed.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a). Because Copeland is
removable by reason of having committed a controlled substance offense, our review is
limited to constitutional claims and questions of law. See 8 U.S.C. § 1252(a)(2)(C)
(divesting courts of jurisdiction to review removal orders against aliens removable by
reason of having committed criminal offenses covered in 8 U.S.C. § 1182(a)(2), which
includes controlled substance violations); Alaka v. Att’y Gen., 456 F.3d 88, 102 (3d Cir.
2006) (stating court retains jurisdiction to review constitutional claims and questions of
law pursuant to § 1252(a)(2)(D)).
In his brief, Copeland challenges the conclusion that he committed an aggravated
felony, a legal question. However, even if his argument were successful and we decided
that he is statutorily eligible for cancellation of removal, the IJ further concluded that
Copeland is not entitled to cancellation of removal as a matter of discretion. We lack
jurisdiction to review the IJ’s discretionary determination. 8 U.S.C. § 1252(a)(2)(B);
Mendez-Reyes v. Att’y Gen., 428 F.3d 187, 189 (3d Cir. 2005). Because we may not
consider the IJ’s decision that Copeland is not entitled to cancellation of removal as a
matter of discretion, that decision would stand even if Copeland prevailed on his
argument that he is not an aggravated felon. We thus conclude that it is unnecessary to
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address the IJ’s ruling that Copeland is statutorily ineligible for cancellation of removal
because a decision in Copeland’s favor would not change the result in his case.
Moreover, even if we had jurisdiction to consider the IJ’s discretionary decision,
the Government correctly argues that Copeland did not challenge in his appeal to the BIA
the IJ’s decision that he does not merit cancellation of removal as a matter of discretion.
Thus, we also lack jurisdiction to review this decision because Copeland did not exhaust
his administrative remedies. Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir.
2003).2
Accordingly, we will deny the petition for review.
2
Similarly, Copeland contends in his reply brief that counsel told him that the only
issue before the IJ would be whether his drug offense constitutes an aggravated felony
and that the IJ should not have questioned him about his application for cancellation of
removal. Copeland did not raise these arguments before the BIA and we may not
consider them.
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