Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-17-2007

Dennis v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4457




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"Dennis v. Atty Gen USA" (2007). 2007 Decisions. Paper 1281.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1281


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                                                          NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT

                                  NO. 05-4457
                               ________________

                         ROGER ANTHONY DENNIS,

                                         Petitioner

                                          v.

              ATTORNEY GENERAL OF THE UNITED STATES
                 ____________________________________

                      On Petition for Review of an Order
                      of the Board of Immigration Appeals
                            Agency No. A41 598 513
                              on February 23, 2004
                       Immigration Judge: Grace A. Sease
                 _______________________________________


                   Submitted Under Third Circuit LAR 34.1(a)
                                April 13, 2007

           Before: FISHER, ALDISERT AND WEIS, Circuit Judges.

                              (Filed April 17, 2007)


                           _______________________

                                  OPINION
                           _______________________

PER CURIAM

    Roger Dennis petitions for review of a decision of the Board of Immigration
Appeals, finding him removable for having committed a crime that constitutes an

aggravated felony and a controlled substance violation. As this Court has already

dismissed Dennis’s petition for review of this same decision, and has already denied his

related appeal from a habeas petition, the appeal will be dismissed.

       Dennis is a native and citizen of Guyana who was admitted to the United States as

a lawful permanent resident on June 21, 1987. On April 14, 2003, he was convicted of

Attempted Criminal Sale of a Controlled Substance in the Third Degree, in violation of

New York Penal Law § 110/220.39(1). A.R. 172. He was sentenced to one to three years

imprisonment. Dennis was placed in removal proceedings via a Notice to Appear, dated

July 22, 2003.

       The Immigration Judge found that Dennis was removable as charged and that his

conviction was final. The Board of Immigration Appeals (BIA) agreed in a decision

dated February 23, 2004, specifically noting that Dennis’s conviction constituted an

aggravated felony and a controlled substance offense. In February 2005, Dennis filed a

petition for a writ of habeas corpus in the United States District Court for the Eastern

District of New York challenging his removal order and his continued detention.

Following passage of the REAL ID Act of 2005, Pub.L. No. 109-13, div. B, 119 Stat. 231

(2005), the Court transferred the portion of the case challenging Dennis’s removal order

to this Court and the portion challenging his continued detention to the United States

District Court for the Middle District of Pennsylvania.



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       However, previously, in March of 2004, Dennis had filed a habeas petition in the

United States District Court for the Middle District of Pennsylvania. That court denied

his habeas petition, including claims that he was not convicted of an aggravated felony

and that he was eligible for a deportation under former § 212(c) of the Immigration and

Nationality Act. The Court also transferred a claim of derivative citizenship to this Court

to be treated as a petition for review. On August 11, 2004, we affirmed the District

Court’s decision as to the habeas petition, holding that Dennis’ conviction was an

aggravated felony, that he was ineligible for § 212(c) relief, and that his detention was

permissible. See Dennis v. Ashcroft, C.A. No. 04-2046 (3d Cir., Aug. 11, 2004). On

November 4, 2004, this Court dismissed Dennis’ petition for review of the BIA’s

February 23, 2004 decision for lack of jurisdiction.1 See Dennis v. Ashcroft, C.A. No.

04-1824 (3d Cir., Nov. 1, 2004).

       As we have already found that Dennis’s removal order is valid, we must dismiss



   1
     Under section 242(a)(2)(C) of the Immigration and Nationality Act (INA) [8 U.S.C.
1252(a)(2)(C)], we lack jurisdiction to review “any final order of removal against an alien
who is removable by reason of having committed,” inter alia, a controlled substance
violation covered in INA § 212(a)(2). We found that Dennis’s citizenship claim was
without merit, and he was thus an alien who had committed a controlled substance
violation. Although the REAL ID Act of 2005 restored direct review of constitutional
claims and questions of law presented in petitions for review of final removal orders, that
Act was not yet in effect when we decided Dennis’s prior appeals. See INA
§ 242(a)(2)(D) [8 U. S.C. § 1252(a)(2)(D)]; Papageorgiou v. Gonzales, 

, 358
(3d Cir. 2005). Nevertheless, as noted, we had already reviewed the merits of Dennis’s
claims through his habeas appeal. Xu Cheng Liang v. INS, 

, 317 (3d Cir.
2000) (pre-REAL ID Act case holding that district courts retained habeas jurisdiction
over cases filed by criminal aliens).

                                             3
this petition for review. 8 U.S.C. § 1252(d)(2).




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