Filed: Mar. 29, 2007
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 3-29-2007 St. Hill v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 04-4191 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "St. Hill v. Atty Gen USA" (2007). 2007 Decisions. Paper 1413. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1413 This decision is brought to you for free and open access by the Opini
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 3-29-2007 St. Hill v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 04-4191 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "St. Hill v. Atty Gen USA" (2007). 2007 Decisions. Paper 1413. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1413 This decision is brought to you for free and open access by the Opinio..
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Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
3-29-2007
St. Hill v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-4191
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"St. Hill v. Atty Gen USA" (2007). 2007 Decisions. Paper 1413.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1413
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 2007 Decisions by an authorized administrator of Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 04-4191
_______________
SIDNEY ST. HILL,
Appellant,
v.
ALBERTO GONZALES, ATTORNEY GENERAL
OF THE UNITED STATES;* BICE.
_______________
On Appeal From the United States District Court
for the Middle District of Pennsylvania
(No. 03-cv-01315)
District Judge: Honorable Edwin M. Kosik
Argued January 22, 2007
Before: SCIRICA, Chief Judge, FUENTES and CHAGARES, Circuit Judges.
(Filed March 29, 2007)
*
Because we convert St. Hill’s present appeal into a petition for review, we are
required to substitute the Attorney General of the United States. 8 U.S.C. §
1252(b)(3)(A).
Alison C. Finnegan, Esq. (Argued)
Deena Jo Schneider, Esq.
Jessica W. Troiano, Esq.
Schnader, Harrison Segal & Lewis LLP
Suite 3600, 1600 Market Street
Philadelphia, PA 19103
Counsel for Petitioner
Daryl F. Bloom, Esq., Assistant U.S. Attorney (Argued)
Thomas A. Marino, Esq., U.S. Attorney
United States Attorney’s Office
Middle District of Pennsylvania
228 Walnut Street, Suite 220
Harrisburg, PA 17108
Counsel for Respondents
________________________
OPINION OF THE COURT
_________________________
CHAGARES, Circuit Judge.
Before the Court is Sidney St. Hill’s (“St. Hill”) appeal of the denial of his petition
for writ of habeas corpus challenging his final order of removal, and the Government’s
motion to transfer venue to the United States Court of Appeals for the Second Circuit.
For the reasons expressed below, we will grant the motion to transfer. We decline to
address the substantive aspects of St. Hill’s appeal, leaving that for the proper judicial
body.
I.
St. Hill is a native and citizen of Guyana who has lived in the United States as a
2
lawful permanent resident since 1982. Over the next decade, he was convicted of
committing four separate crimes under New York law: to wit, a July 11, 1983 conviction
for possession of a weapon; a January 29, 1984 conviction for unlawful possession of
marijuana pursuant to New York State Penal Law § 221.05, a misdemeanor; a December
10, 1984 conviction for criminal possession of a weapon in the third degree; and a July
22, 1992 conviction for unlawful possession of a controlled substance in the third degree
under New York State Penal Law § 220.16(12), a class B felony.
On June 11, 1997, based on the 1984 conviction for possession of marijuana and
the 1992 conviction for criminal possession of cocaine, the Immigration and
Naturalization Service 1 (“INS”) commenced removal proceedings against St. Hill. St.
Hill applied for cancellation of removal under Immigration and Nationality Act (“INA”) §
240A, 8 U.S.C. § 1229b(a), and for waiver of removal under INA § 212(c), 8 U.S.C. §
1182(c) (now repealed).
On March 18, 1998, an Immigration Judge (IJ) in Fishkill, New York, denied St.
Hill’s requests for relief and ordered St. Hill removed from the United States to Guyana.
The IJ concluded that St. Hill’s 1992 conviction was for “a drug trafficking crime” that
1
The INS ceased to exist as an agency within the Department of Justice on March
1, 2003, and its enforcement functions were transferred to the Bureau of Immigration and
Customs Enforcement (“BICE”) within the Department of Homeland Security. See
Homeland Security Act, Pub. L. No. 107-296, § 441, 116 Stat. 2135, 2192 (2002). For
the purposes of our discussion, we will continue to use the appellation INS to refer to
BICE.
3
constituted an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(B), and rendered
him ineligible for cancellation of removal.
The BIA affirmed by decision of July 11, 2001. The BIA reasoned that under the
Controlled Substances Act, 21 U.S.C. § 844(a), a conviction for unlawful possession of a
controlled substance that is committed after a prior drug conviction has become final is
punishable by a term of imprisonment of up to two years and is thus a felony within the
meaning of the Controlled Substances Act.
On March 8, 2002, St. Hill filed a petition for writ of habeas corpus in United
States District Court for the Eastern District of New York, challenging the order of
removal. In his petition, St. Hill argued that he had not been convicted of an aggravated
felony, and that he was entitled to cancellation of removal under 8 U.S.C. § 1229b(a), or
alternatively, waiver of removal, under § 212(c), formerly 8 U.S.C. § 1182(c). By order
dated November 25, 2002, the District Court vacated the BIA’s final order of removal and
remanded St. Hill’s case to the BIA “for a determination as to whether [St. Hill] is
removable from the United States based on his criminal connections [sic] and if so,
whether petitioner is eligible for any relief from removal.” (A52.) After additional
briefing on these issues, the BIA again denied St. Hill’s appeal by order dated May 6,
2003. In doing so, the BIA reaffirmed its prior decision regarding the aggravated felony.
In July 2002, St. Hill was released on parole to the custody of the immigration
4
authorities and transferred to Pike County Prison in Lords Valley, Pennsylvania.
Approximately one year later, on August 6, 2003, St. Hill filed a second petition for writ
of habeas corpus, this time in the Middle District of Pennsylvania. The petition
challenged his detention pursuant to the BIA’s final orders of removal dated July 11,
2001 and May 6, 2003.
In his petition, St. Hill argued that Third Circuit precedents, namely Steele v.
Blackman, 236 F.3d 130 (3d Cir. 2001) and Gerbier v. Holmes,
280 F.3d 297 (3d Cir.
2002), supported his contention that his July 22, 1992 conviction for unlawful possession
of a controlled substance in the third degree under New York State Penal Law §
220.16(12) was not an aggravated felony. The Pennsylvania District Court disagreed.
Applying Second Circuit precedents, the court concluded that although St. Hill’s first
drug conviction constituted merely simple possession and was a misdemeanor under
federal law, the second drug conviction qualified as a drug-trafficking crime and thus an
aggravated felony. By order dated October 21, 2003, the Pennsylvania District Court
denied St. Hill’s habeas petition, and affirmed the BIA.
On October 23, 2003, St. Hill filed a notice of appeal of the Pennsylvania decision,
albeit mistakenly, in the Court of Appeals for the Second Circuit. The Second Circuit
Court of Appeals treated St. Hill’s notice of appeal as a petition for review from the
BIA’s May 2003 decision. Noting only that St. Hill’s petition was untimely, the Court
dismissed the appeal on August 23, 2004 for lack of jurisdiction. Following the dismissal
5
of his habeas petition, on September 1, 2004, St. Hill filed a new petition for writ of
habeas corpus in the District Court for the Eastern District of New York. In this petition,
St. Hill again argued that the BIA erred in classifying his conviction as an aggravated
felony. The District Court denied St. Hill’s petition on March 30, 2005. St. Hill filed a
notice of appeal on June 2, 2005. His appeal to the Court of Appeals for the Second
Circuit has been stayed pending our decision here.
On October 25, 2004, St. Hill participated in a telephone conference with the
District Court for the Eastern District of New York and counsel for the Government,
during which it became clear that St. Hill mistakenly filed his appeal from the October 21,
2003 decision of the Middle District of Pennsylvania in the Court of Appeals for the
Second Circuit. Thereafter, on October 28, 2004, St. Hill filed a notice of appeal in
Pennsylvania, in which he requested an extension of time pursuant to F. R. A PP. P. 4(a).
By order dated November 2, 2004, the Pennsylvania District Court granted St. Hill’s
motion for an extension of time, permitting him to file his appeal nunc pro tunc.2
II.
Our jurisdiction over this matter is a threshold issue. Prior to May 11, 2005, an
2
St. Hill submitted an informal brief pro se on January 21, 2005; the Government
responded on March 22, 2005 and St. Hill filed a timely reply on March 29, 2005. The
case was calendared before a merits panel on May 24, 2005. However, on October 20,
2005, this Court appointed counsel for St. Hill. Counsel for St. Hill was accorded a new
briefing schedule.
We take this opportunity to express our gratitude for appointed counsel’s
exemplary representation of St. Hill in this case.
6
alien could challenge an order of removal in a petition for writ of habeas corpus filed in
the district court under 28 U.S.C. § 2241. Duvall v. Attorney General, 436 F.3d 382, 386
(3d Cir. 2006) (citing INS v. St. Cyr,
533 U.S. 289, 292 (2001)). While St. Hill’s appeal
was pending, however, Congress enacted the REAL ID Act of 2005, Pub. L. No. 109-13,
119 Stat. 231 (2005), which divests district courts of jurisdiction over challenges to orders
of removal. The REAL ID Act mandates that habeas corpus petitions challenging orders
of removal pending in district courts are to be converted to petitions for review and
transferred to the appropriate court of appeals. REAL ID Act of 2005, Pub. L. No. 109-
13, § 106(c), 119 Stat. 231, 311 (2005). The appropriate court of appeals is the one
encompassing the jurisdiction where “the immigration judge completed the proceedings.”
8 U.S.C. § 1252(b)(2); Bonhometre v. Gonzales,
414 F.3d 442, 446 n.5 (3d Cir. 2005).
As noted above, St. Hill’s immigration proceedings took place in New York, and in a
proceeding currently stayed before the Court of Appeals for the Second Circuit, St. Hill
appeals parallel issues regarding his prior drug convictions and his eligibility for
cancellation of removal.
Congress was silent regarding whether an appeal from a district court habeas
decision pending before a court of appeals at the time of the enactment of the REAL ID
Act should be converted into petitions for review. Bonhometre, 414 F.3d at 446. After
considering this lack of congressional direction, we have determined that such appeals
should likewise be converted into petitions for review.
Duvall, 436 F.3d at 386;
7
Bonhometre, 414 F.3d at 446. Thus, St. Hill’s appeal of the District Court’s denial of his
petition for habeas relief is properly converted into a petition for review of the BIA’s final
order of removal.
St. Hill asserts that we should retain jurisdiction over his now-converted petition
for review instead of transferring it to the Court of Appeals for the Second Circuit. Like
St. Hill, Bonhometre’s immigration proceedings were completed outside the jurisdiction
of this Circuit. Although we acknowledged that “some habeas petitions pending before
the district courts of this Circuit may not be properly before us as converted-petitions for
review,” Bonhometre, 414 F.3d at 446 n.5 (citing 8 U.S.C. § 1252(b)(2) (1999)), we
nonetheless retained jurisdiction over Bonhometre’s petition. We reasoned that after
waiting such a long time for the resolution of his claims, “it would be a manifest injustice
to now transfer this case to another court for duplicative proceedings.”
Id. Aligning
himself with Bonhometre, St. Hill seeks similar treatment of his case.
With the enactment of the REAL ID Act, Congress sought to further streamline
what it perceived to be piecemeal review of orders of removal. See H.R. Rep. No. 109-
72, at 173-75 (2005), reprinted in 2005 U.S.C.C.A.N. 240, 298-299. Not only must we
abide by the express statutory command that petitions for review shall be transferred to
the appropriate court of appeals but also here, interests of judicial economy mandate that
we transfer this case. What distinguishes this case from Bonhometre is St. Hill’s stayed
petition on appeal. In Bonhometre, there was no indication that any court within the First
8
Circuit – district or appellate – had taken an appeal or engaged in any review of the BIA
decision. Therefore, rather than accrue more delay in transferring the case where the
whole review process would necessarily have to begin from inception, we retained
jurisdiction out of concern that further delay would cause manifest injustice. Unlike
Bonhometre, however, St. Hill has court-appointed counsel ready to proceed in New
York; the case has been accepted for review; and without a doubt, it will proceed
expeditiously upon transfer. Finally, as it is clear that Second Circuit law governs the
converted petition for review, a fact recognized by the Pennsylvania District Court,
transfer is merited out of consideration for our sister Circuit’s greater expertise in the
application and analysis of the laws of New York.
III.
Accordingly, we will grant the Government’s motion to transfer venue to the Court
of Appeals for the Second Circuit.
9
