Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
7-11-2008
Phillips v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-4509
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 04-4509
___________
LEON EMANUEL PHILLIPS,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
________________________
Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA No. A37 453 263)
Immigration Judge: Honorable Alberto J. Riefkohl
________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 2, 2008
RENDELL, GREENBERG and VAN ANTWERPEN, Circuit Judges
(Filed: July 11, 2008)
___________
OPINION OF THE COURT
___________
PER CURIAM
Leon Phillips petitions for review of a Board of Immigration Appeals (“BIA”)
decision vacating the Immigration Judge’s (“IJ”) grant of a discretionary waiver from
deportation under 8 U.S.C. § 1182(c), former § 212(c) of the Immigration and Nationality
Act. We will deny the petition for review.
Phillips is a native and citizen of Jamaica. He entered the United States in 1980 as
a lawful permanent resident when he was nine years old. In 1992, Phillips was convicted
in New Jersey state court of possession of marijuana with intent to distribute within 1,000
feet of a school. In 1993, the Immigration and Naturalization Service issued an order to
show cause charging that Phillips was subject to deportation because he was convicted of
violating a law relating to a controlled substance and because he was convicted of an
aggravated felony, as defined by the Immigration and Nationality Act.
Phillips conceded his conviction, but he denied that he was deportable as charged
and moved to terminate the proceedings. On May 5, 1995, the IJ denied Phillips’ motion
to terminate, ruling that Phillips was not an aggravated felon because he was not
sentenced to five or more years in prison, but holding that he was deportable for violating
a law relating to a controlled substance, other than a single offense involving possession
for one’s own use of 30 grams or less of marijuana.
Phillips applied for a waiver from deportation under former § 212(c) of the
Immigration and Nationality Act. On May 9, 1995, the IJ held a hearing on the merits of
the application. On September 25, 1996, the IJ issued a “Memorandum Temporary
Order” holding Phillips’ proceedings in abeyance pending a decision by the Attorney
General or the Supreme Court addressing whether the Antiterrorism and Effective Death
Penalty Act of 1996, effective April 24, 1996, precluded Phillips from seeking a waiver.
2
On June 27, 1997, the IJ ordered Phillips’ deportation, concluding that he was
ineligible for a waiver under a recent decision by the Attorney General. Phillips
appealed, arguing that he was eligible for a waiver and that his application should have
been considered on the merits. It appears that the BIA remanded the matter to the IJ to
consider Phillips’ application on the merits after the Supreme Court decided I.N.S. v. St.
Cyr, 533 U.S. 289 (2001), under which Phillips was eligible for a waiver.1
In 2003, after a hearing, the IJ granted Phillips’ application for a § 212(c) waiver.
The IJ found Phillips’ situation in 2003 “completely different” from his situation in 1995.
The IJ explained that Phillips was now married, had a daughter and a stepdaughter, had
steady employment, and had been rehabilitated completely. The IJ recognized that
Phillips was arrested in 1997 for possession of marijuana, but stated that the charges were
disposed of under New Jersey’s disorderly offense statute, and that he had avoided any
other problems. The IJ stated that Phillips has been a lawful permanent resident since he
was nine years old, that he had no family in Jamaica, and that he had matured and
understood his obligations as an adult. The IJ also noted that Phillips was trying to obtain
legal custody of his daughter, whose mother was unstable. The IJ expressed concern
about the care of Phillips’ daughter if he were removed.
The Government appealed, and the BIA vacated the grant of a waiver. The BIA
1
The remand order and the June 27, 1997, deportation order are not included in the
administrative record. Although the BIA returned the record to the IJ on March 31, 2000,
to supply the June 27, 1997, decision, it was apparently not provided.
3
found that the record supported the IJ’s determination that Phillips had been rehabilitated,
but concluded that the equities in the case were not sufficiently unusual or outstanding to
outweigh the serious negative factors of Phillips’ criminal conviction for possessing drugs
with the intent to sell them near a school and his subsequent conviction for possession of
marijuana.2 This petition for review followed.
We must first address our jurisdiction to entertain Phillips’ petition for review.
The Government argues that we lack jurisdiction to review the BIA’s discretionary denial
of a waiver. Phillips, however, does not challenge the discretionary denial of relief.
Rather, he raises two legal arguments for our review. Although the Government further
argues that we lack jurisdiction because Phillips is a criminal alien, we have jurisdiction
to consider Phillips’ constitutional claims and questions of law. See Kamara v. Attorney
General, 420 F.3d 202, 210 (3d Cir. 2005). The Government’s motion and renewed
motion to dismiss the petition for review for lack of jurisdiction are denied.
Phillips primarily argues in his petition for review that his conviction is not an
aggravated felony. Although the IJ described Phillips as an aggravated felon in his 2003
decision on the waiver application, as noted above, on May 5, 1995, the IJ ruled that
Phillips is not an aggravated felon because he was not sentenced to five or more years in
prison. A.R. at 339-42. The IJ held that Phillips is deportable for violating a law relating
2
One board member dissented, stating that Phillips showed sufficient equities to
overcome his convictions, and that she would affirm the IJ’s favorable exercise of
discretion.
4
to a controlled substance, other than a single offense involving possession for one’s own
use of 30 grams of less of marijuana. The IJ reaffirmed this ruling at the May 9, 1995,
merits hearing. A.R. at 168-70. The administrative record does not reflect that the IJ
amended this decision. In any event, we need not decide whether Phillips’ conviction
constitutes an aggravated felony. Phillips was found deportable pursuant to 8 U.S.C.
§ 1251(a)(2)(B) (now § 1227(a)(2)(B)) for a controlled substance violation, and he does
not dispute that he is deportable on this basis.3
Phillips also argues that the BIA improperly reviewed the IJ’s decision de novo,
and that the BIA should have applied a clearly erroneous standard of review. We
disagree. The applicable regulations provide that the BIA may review questions of law,
discretion, and judgment and all other issues in appeals from decisions of immigration
judges de novo. 8 C.F.R. § 1003.1(d)(3)(ii). Although a clearly erroneous standard
applies to the IJ’s factual findings, 8 C.F.R. § 1003.1(d)(3)(i), the BIA did not disagree
with the IJ’s factual findings. Rather, the BIA concluded that Phillips had not shown that
unusual or outstanding equities offset the seriousness of his convictions and warranted a
discretionary grant of a waiver.
Accordingly, we will deny the petition for review.
3
It is also not clear that we would have jurisdiction to entertain Phillips’ argument that
he is not an aggravated felon because he may have waived the issue in the administrative
proceedings. Phillips does not appear to have challenged his deportability after the IJ
issued its June 27,1997, order of deportation. He only argued that he was eligible for a
waiver. Phillips did raise an issue as to his deportability in response to the Government’s
appeal of the IJ’s grant of a waiver. The Government argued that the issue was not
properly before the BIA, and the BIA did not address the issue in its decision.
5