Filed: May 10, 2006
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 5-10-2006 Smallhorne v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 05-1898 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Smallhorne v. Atty Gen USA" (2006). 2006 Decisions. Paper 1130. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1130 This decision is brought to you for free and open access by the O
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 5-10-2006 Smallhorne v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 05-1898 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Smallhorne v. Atty Gen USA" (2006). 2006 Decisions. Paper 1130. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1130 This decision is brought to you for free and open access by the Op..
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Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
5-10-2006
Smallhorne v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-1898
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"Smallhorne v. Atty Gen USA" (2006). 2006 Decisions. Paper 1130.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1130
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 05-1898
__________
BARRINGTON SMALLHORNE,
Appellant
v.
ATTORNEY GENERAL OF THE UNITED STATES *
__________
On Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A35-959-428
Immigration Judge: Charles A. Wiegand III
Initially Docketed as an Appeal from District of New Jersey No. 04-cv-5965
Prior to the Enactment of the Real ID Act on 2005
District Judge: The Honorable Jose L. Linares
_________
Submitted under Third Circuit LAR 34.1(a) – January 23, 2006
_________
Before: RENDELL and STAPLETON, Circuit Judges.
*
Because we have converted the present case into a petition for direct review, we are
required to substitute the Attorney General for the current respondent (Secretary, U.S.
Department of Homeland Security). 8 U.S.C. § 1252(b)(3)(A).
1
and POLLAK,** District Judge.
(Filed: May 10, 2006)
_______
OPINION
________
POLLAK, District Judge:
Appellant Barrington Smallhorne appeals an order of the United States District
Court for the District of New Jersey denying Smallhorne’s petition for habeas corpus.
Because we write primarily for the parties, who are presumably familiar with the
facts and procedural history of the case, we will summarize the facts and history of the
case only briefly. Smallhorne, a citizen of Jamaica, was admitted to the United States as
an immigrant in December 1979. In 1993, he was convicted in New York of criminal
possession of a weapon and criminal possession of a controlled substance in the seventh
degree. He was convicted of a similar drug offense in 1996. As a result of these
convictions, removal proceedings were instituted against Smallhorne, and he was
detained and transferred to a detention center in Oakdale, Louisiana. There, on
September 12, 1997, an immigration judge determined Smallhorne had been convicted of
an aggravated felony and therefore ordered him removed. Smallhorne appealed to the
BIA, but his appeal was dismissed by order dated January 19, 2000. Smallhorne later
**
Honorable Louis H. Pollak, District Judge for the United States District Court of the
Eastern District of Pennsylvania, sitting by designation.
2
moved the BIA to reconsider, which the BIA declined to do by order dated June 22, 2000.
The record does not indicate that Smallhorne appealed either of these decisions 1 .
For reasons not made clear by the record, Smallhorne was released from INS
custody at some point, but he was re-arrested and taken into custody in New Jersey on
October 7, 2004. After his re-arrest, on October 22, 2004, Smallhorne filed a motion to
reopen his case with the BIA. The BIA denied that motion on November 24, 2004. On
December 6, 2004, Smallhorne filed a petition for habeas corpus in federal court in New
Jersey. The District Court denied Smallhorne’s petition on March 8, 2005, finding it
lacked jurisdiction to review, under the auspices of a petition for habeas corpus, the
BIA’s exercise of discretion in denying a motion to reopen. On March 19, 2005,
Smallhorne filed a notice of appeal.
On May 11, 2005, the President signed into law the so-called “Real ID Act.” Pub.
L. No. 109-13, 119 Stat. 231. Among other things, the Real ID Act dramatically alters
the regime of judicial review of removal orders by providing that, except in very limited
circumstances, “a petition for review filed with an appropriate court of appeals . . . shall
1
Smallhorne did file a petition for habeas corpus on July 7, 2000 in the United States
District Court for the Southern District of New York. However, that proceeding was dismissed
without prejudice by stipulation of the parties pending the outcome of Calcano-Martinez v. INS,
232 F.3d 328 (2d Cir. 2000), which was then pending before the Court of Appeals. According to
the government, the stipulation specified that, if Smallhorne failed to reinstate his petition within
30 days of the Court of Appeals’ decision in Calcano-Martinez, his petition would be deemed
dismissed with prejudice. The government represents that Smallhorne never reinstated his
petition, and therefore it was dismissed with prejudice. Smallhorne does not dispute this
assertion.
3
be the sole and exclusive means for judicial review of an order of removal. . . .” 8 U.S.C.
§ 1252(a)(5). District courts therefore no longer have authority to entertain habeas
corpus petitions that challenge removal orders. See Bonhometre v. Gonzales, 414 F.3d
442, 445-46 (3d Cir. 2005); Jordon v. Attorney Gen.,
424 F.3d 320, 326 (3d Cir. 2005).
On July 15, 2005, just days after briefing in the instant case was completed, this
Court considered how to proceed in a procedural situation akin to Smallhorne’s. See
Bonhometre, 414 F.3d 442. In Bonhometre, we noted that “[i]n the Real ID Act . . .
Congress was silent as to what was to be done with an appeal from a district court habeas
decision that is now pending before a court of appeals.”
Id. at 446. We went on to decide
that such petitions “are properly converted to petitions for review and retained by this
Court” and are evaluated as if the district court opinion did not exist.
Id. Smallhorne’s
petition, like Bonhometre’s, was pending before this Court on the day the Real ID Act
was signed into law, and we therefore convert it to a petition for review 2 .
The sole argument presented by Smallhorne in his brief on appeal from the District
Court order denying his habeas petition is that none of his New York convictions,
2
Having been so converted, Smallhorne’s case faces an additional procedural oddity
created by the Real ID Act. 8 U.S.C. § 1252(b)(2), as amended, instructs that petitions for
review “shall be filed with the court of appeals for the judicial circuit in which the immigration
judge completed the proceedings.” Smallhorne’s removal proceedings were conducted in
Louisiana, within the geographic reach of the Fifth Circuit. However, § 1252(b)(2) is a venue
provision, not a jurisdictional provision, and, under circumstances similar to those presented
here, this court has retained cases despite this technical defect in venue. See Bonhometre, 414
F.3d at 446 n.5; Belizaire v. Att’y General, 152 Fed. Appx. 258, 259 n.1 (3d Cir. 2005). We will
follow suit and decide Smallhorne’s case.
4
considered independently or in combination, amount to an “aggravated felony” within the
meaning of the INA, and he therefore should have been eligible for cancellation of
removal. In relying on this argument, Smallhorne ignores the procedural posture of this
case. Smallhorne’s petition for habeas corpus requested relief from the BIA’s refusal to
reopen his case, not the BIA’s dismissal of his appeal on the merits (i.e. – the BIA’s
determination that his New York drug convictions constituted an aggravated felony) 3 .
Absent exceptional circumstances, we do not consider issues on appeal that were not
raised with the District Court. Continental Casualty Co. v. D’Andrea, 150 F.3d 245, 251
(3d Cir. 1998). Smallhorne points to no exceptional circumstances that would justify our
departure from the general rule in this case – indeed, Smallhorne fails even to
acknowledge that he did not raise before the District Court the argument he presents in
this appeal. It is true that Bonhometre instructs us to ignore the District Court opinion in
cases, such as this one, that are converted to petitions for direct review. However,
Bonhometre does not require us to turn a blind eye to the history of the case before us.
While we will, in conformity with Bonhometre, vacate the District Court’s opinion and
consider this case as if that opinion did not exist, we see no reason to disregard the fact
that Smallhorne’s challenge to the merits of the removal order against him is made for the
first time in this appeal. We will not consider that challenge, as it was not presented in
3
The BIA’s merits ruling was referred to, and characterized as erroneous, in the habeas
petition, but that was not the asserted BIA error on which petitioner grounded his claim of
entitlement to habeas relief.
5
the petition filed by Smallhorne in the District Court 4 .
The only matter properly before this court is the issue that was presented to the
District Court – namely, the propriety of the BIA’s denial of Smallhorne’s motion to
reopen 5 . A motion to reopen a case in the BIA is governed by 8 C.F.R. § 1003.2(c),
which provides, with certain exceptions not applicable here, that a “motion [to reopen]
must be filed no later than 90 days after the date on which the final administrative
decision was rendered in the proceeding sought to be reopened.” Smallhorne filed his
motion to reopen with the BIA at least four years too late. We therefore discern no error
in the BIA’s denial of the motion to reopen. We will deny the petition for review.
4
See note 3, supra.
5
While that issue was not addressed in the brief filed on Smallhorne’s behalf in this
Court, we will consider the issue since it was the focus of the habeas petition that initiated the
litigation now before us.
6
