[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 25, 2007
No. 07-10204 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A37-749-566
HUGH ANTHONY HAMILTON,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(June 25, 2007)
Before BIRCH, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Hugh Anthony Hamilton appeals the BIA’s denial of his motion for
reconsideration of its earlier dismissal of his appeal of the IJ’s refusal to grant him
discretionary relief under former INA § 212(c), 8 U.S.C. § 1182(c) (1994).1
Hamilton argues that the BIA abused its discretion in denying reconsideration
because the IJ violated his due process rights in conducting an allegedly hostile,
biased hearing that was fundamentally unfair.
The government claims that we lack jurisdiction to review the merits of the
BIA’s final order of removal under 8 U.S.C. § 1252(a)(2)(C), because Hamilton is
an alien and is removable for having committed an aggravated felony—possession
with the intent to distribute cocaine. Further, the government argues that Hamilton
has failed to present (1) a cognizable constitutional claim or (2) a statutory
question regarding the denial of his § 212(c) application and therefore does not
qualify for the § 1252(a)(2)(D) exception to the jurisdictional bar, which allows us
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That section provided that “[a]liens lawfully admitted for permanent reside[nce] . . .
who are returning to a lawful unrelinquished domicile of seven consecutive years, may be
admitted [to the United States] in the discretion of the Attorney General . . . . The first sentence
of this subsection shall not apply to an alien who has been convicted of one or more aggravated
felonies and has served for such felony or felonies a term of imprisonment of at least 5 years.”
INS § 212(c); 8 U.S.C. § 1182(c) (1994). “Section 212(c) was repealed in 1996, but the
Supreme Court partially extended its availability in INS v. St. Cyr, 533 U.S. 289, 121 S. Ct.
2271 . . . (2001).” Savoury v. United States Att’y Gen., 449 F.3d 1307, 1312 (11th Cir. 2006).
Although Hamilton was sentenced to seven-years imprisonment after pleading guilty to the
cocaine charges, he only served eighteen months in prison and was therefore statutorily eligible
for § 212(c) relief.
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to exercise jurisdiction over those two types of claims even where the petitioner is
convicted of an aggravated felony.
Hamilton has been before the IJ and BIA multiple times due to his reliance
on former § 212(c) and the subsequent cases of In re Soriano, 21 I. & N. Dec. 516,
520 (BIA 1996) (allowing the reopening of removal proceedings if the petitioner
conceded deportability prior to the enactment of AEDPA 2 in reliance on the
availability of section 212(c) relief), and INS v. St. Cyr, 533 U.S. 289, 121 S. Ct.
2271 (2001) (determining that AEDPA did not apply retroactively to aliens who
pleaded guilty prior to the enactment of the statute). In his third and latest
appearance before the Immigration Court, the IJ determined that Hamilton’s §
212(c) claim failed on the merits because Hamilton had done nothing to improve
himself, had failed to file taxes, had no property, children or dependents, had a
haphazard employment history, had no steady home, and had performed no
community service. The IJ weighed the equities and counter equities, and found
that it was not in the best interest of the community to award Hamilton § 212(c)
discretionary relief.
2
The Antiterrorism and Effective Death Penalty Act of 1996 (ADEPA) § 404(d), Pub. L.
No. 104-132, 110 Stat. 1214, 1277, rendered aliens convicted of aggravated felonies, regardless
of the length of their sentence, ineligible for discretionary relief from deportation under § 212(c)
of the INA. See Chuang v. United States Att’y Gen., 382 F.3d 1299, 1302 (11th Cir. 2004).
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Hamilton appealed that decision to the BIA, claiming that the IJ failed to
adequately balance the equities, was biased against him, appeared annoyed, and
was impaired from making independent findings of fact. The BIA affirmed the IJ
and entered a final order of removal, noting that Hamilton failed to demonstrate
unusual or outstanding equities. Hamilton did not appeal the BIA’s decision (just
as he did not appeal the BIA’s two prior decisions) but instead filed a motion to
reconsider. That motion did not specifically allege that his due process rights had
been violated but claimed that the IJ did not allow him to present new evidence and
did not give enough weight to the positive equities he offered. The BIA
subsequently denied Hamilton’s motion to reconsider, and Hamilton filed a timely
appeal to this court.
We must begin by determining whether and to what extent we have
jurisdiction over Hamilton’s appeal. We review de novo questions of subject
matter jurisdiction. Jaggernauth v. United States Att’y Gen., 432 F.3d 1346, 1350
(11th Cir. 2005). Moreover, we have an obligation to inquire into subject matter
jurisdiction sua sponte whenever it may be lacking. Cadet v. Bulger, 377 F.3d
1173, 1179 (11th Cir. 2004).
Although Hamilton did not expressly appeal the BIA’s final order of
removal, his motion to reconsider alleges some claims that are directly linked to
that decision and the underlying decisions of the IJ. We have no jurisdiction to
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consider those decisions for two reasons. First, because Hamilton was convicted of
possessing cocaine with the intent to distribute (an aggravated felony), we lack
jurisdiction under 8 U.S.C. § 1252(a)(2)(C) to review an order of removal entered
against him. We only have jurisdiction to the extent Hamilton raises a
constitutional claim or a question of law. Id. § 1252(a)(2)(D).
Second, although the government did not raise the argument, we hold sua
sponte that we lack jurisdiction to review the BIA’s order of removal and the
underlying IJ decisions because Hamilton failed to file a timely appeal in this
court. The IJ’s removal order became final when it was affirmed by the BIA on
July 28, 2006. See 8 C.F.R. § 1241.1. Hamilton had thirty days to petition for
review of that order, but he failed to do so. See 8 U.S.C. § 1252(b)(1)–(2). The
motion to reconsider that Hamilton did file in a timely fashion did not toll the
thirty-day time period. Dakane v. United States Att’y Gen., 399 F.3d 1269, 1272
n.3 (11th Cir. 2005) (motion to reopen). Therefore, we have jurisdiction only to
review the BIA’s denial of Hamilton’s motion to reconsider. We cannot review
any claims arising out of the BIA’s order of removal or the attendant IJ orders,
including Hamilton’s constitutional due process claim to the extent it was not
included in his motion to reconsider. See Amaya-Artunduaga v. United States
Att’y Gen., 463 F.3d 1247, 1251 (11th Cir. 2006) (noting that procedural due
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process claims alleging that the petitioner was denied a full and fair hearing before
a neutral factfinder requires administrative exhaustion).
Accordingly, we turn to Hamilton’s motion to reconsider. “Aliens are
entitled to due process of law in deportation [or removal] hearings.” Ibrahim v.
INS, 821 F.2d 1547, 1550 (11th Cir. 1987). “Due process is satisfied only by a full
and fair hearing.” Id. Thus, an alien’s procedural due process rights are violated
where he is denied a full and fair hearing before a neutral IJ. See Amaya-
Artunduaga, 463 F.3d at 1251. Our review here is for abuse of discretion. See
Assa’ad v. United States Att’y Gen., 332 F.3d 1321, 1341 (11th Cir. 2003).
Judicial review is “limited to determining whether there has been an exercise of
administrative discretion and whether the matter of exercise has been arbitrary and
capricious.” Abdi v. United States Att’y Gen., 430 F.3d 1148, 1149 (11th Cir.
2005) (citation and quotation marks omitted).
Upon review of the record and the BIA’s denial of Hamilton’s motion to
reconsider, we find no abuse of discretion. The transcript from the IJ hearing
indicates that the IJ allowed Hamilton and all of his witnesses to testify. The IJ
listened to and evaluated the testimony, asked follow-up questions, and cited that
testimony is his oral decision. The IJ was not biased. While he challenged
Hamilton’s failure to improve himself, he also challenged government’s failure to
submit proof regarding Hamilton’s 2001 conviction for using false documents.
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Hamilton had a full and fair hearing before the IJ, and the BIA did not abuse its
discretion in refusing to reconsider its decision.
PETITION DISMISSED IN PART, DENIED IN PART.
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