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


11-27-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1787




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"Powell v. Atty Gen USA" (2007). 2007 Decisions. Paper 188.
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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 07-1787
                                   ________________

                              DENZIL LEROY POWELL,
                                               Petitioner,
                                        v.

                 ATTORNEY GENERAL OF THE UNITED STATES

                      ____________________________________

                        On a Petition For Review of an Order
                         of the Board of Immigration Appeals
                               Agency No. A37-457-243
                    Immigration Judge: Honorable Walter A. Durling
                           __________________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                  November 7, 2007

                Before: AMBRO, FUENTES and FISHER, Circuit Judges

                               (Filed : November 27, 2007)

                                  _________________

                                      OPINION
                                  _________________


PER CURIAM

       Petitioner Denzil Leroy Powell, a native and citizen of Jamaica, was admitted to

the United States as a lawful permanent resident in August 1981. In November 1995, he

was convicted pursuant to a plea of guilty in United States District Court for the Middle
District of North Carolina of conspiracy to distribute crack cocaine in violation of 21

U.S.C. § 846 and money laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i). He was

sentenced to a term of imprisonment of 198 months, which he immediately began to

serve.

         Powell was placed in removal proceedings with service of a Notice to Appear on

December 13, 1999. His first hearing took place on February 29, 2000, but proceedings

were continued at his request to allow him the opportunity to obtain counsel. On May 9,

2000, proceedings resumed and another continuance was granted. On July 27, 2000, the

Department of Homeland Security (“DHS”) moved to administratively close proceedings,

because Powell had been transferred to a different prison with no easy access to an

immigration court.

         Approximately five years later, in the beginning of 2005, Powell applied for the

first time for a waiver under former Immigration & Nationality Act (“INA”) § 212(c), 8

U.S.C. § 1182(c) (1995). DHS moved to re-calendar proceedings because Powell had

been transferred back to his original prison. During the current proceedings, the

Immigration Judge found Powell removable as an aggravated felon as that term is defined

by INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), based on the drug trafficking

conspiracy conviction. Powell raised the issue of his eligibility for a section 212(c)

waiver during his removal hearing, but the IJ pretermitted his application, finding that

Powell was statutorily ineligible; he had by that time served more than nine years in

prison for his aggravated felony conviction.

                                               2
       Powell then appealed to the Board of Immigration Appeals. He contended that the

IJ erred in pretermitting his section 212(c) application because he had not served five

years in prison at the time of his first two hearings in 2000. He asked that his application

be considered nunc pro tunc because he would have been eligible for relief had

proceedings not been delayed by the administrative closure. In a decision dated June 12,

2006, the Board dismissed the appeal, reasoning that Powell knew when he pleaded guilty

and negotiated his sentence that he was exposing himself to a period of federal

incarceration, sixteen and one-half years, that would preclude discretionary section 212(c)

relief. See Quarantillo v. DiPeppe, 

(3d Cir. 2003).

       Powell has petitioned for review, a petition we will deny. We have jurisdiction

under 8 U.S.C. § 1252(a)(2)(D) to review “constitutional claims and legal questions”

concerning statutory ineligibility for relief under former section 212(c). Powell contends

on appeal that the Board’s decision concerning his application for a waiver under former

section 212(c) is contrary to the Supreme Court’s decision in Immigration &

Naturalization Serv. v. St. Cyr, 

(2001), and is in error because he had not

yet served five years in prison at the time of his first two hearings in 2000. His 2005

application for a waiver should be considered nunc pro tunc, because the IJ erred when he

did not disclose during the 2000 hearings that section 212(c) relief might be available.

       We reject these contentions as unpersuasive. Section 212(c) was interpreted to

allow any lawful permanent resident with an unrelinquished domicile of seven

consecutive years to apply for a discretionary waiver from deportation. Quarantillo, 

. In 1990, prior to the time when Powell pleaded guilty, the statute was

amended to preclude relief for anyone convicted of an aggravated felony who had served

a term of imprisonment of at least five years. 

1996, Congress passed

the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) and

repealed section 212(c). In St. Cyr, 

, the Supreme Court held, under the Ex

Post Facto Clause, that the repeal was impermissibly retroactive to a certain class of

aliens whose convictions were obtained through plea agreements and who would have

been eligible for section 212(c) relief at the time of their plea under the law then in effect.

The Court was concerned that the possibility of being granted such relief might have

influenced the decision to plead guilty and waive constitutional rights. 

       Powell, however, would not have been eligible under the law then in effect and

could not have been influenced by the possibility that he would be granted such relief.

Under the law then in effect, a waiver was unavailable to an alien who had been

convicted of one or more aggravated felonies, a circumstance Powell does not challenge,

and had served for such felony or felonies a term of imprisonment of at least five years.

St. Cyr only benefitted aliens who pleaded guilty on the realistic understanding that they

would still be eligible for discretionary relief so long as they had served less than five

years in prison. Powell is not such an alien, because, if he entered a negotiated plea, he

clearly knew that he would be imprisoned for 16½ years; if he entered an open plea, he

knew that he could receive a sentence of imprisonment up to the statutory maximum. He

could not reasonably have relied on the availability of section 212(c) relief in pleading

                                               4
guilty to a drug trafficking offense that exposed him to 16½ years in a federal prison.

          We also reject as unpersuasive Powell’s alternative contentions that he had not yet

served five years in prison at the time of his first two hearings in 2000, that proceedings

were closed through no fault of his own, and that the IJ erred when he did not disclose

during the 2000 hearings that section 212(c) relief might be available. The Board

correctly applied circuit precedent to reject the claim. In Quarantillo, 

, the

alien pleaded guilty to aggravated manslaughter and was sentenced to a term of

imprisonment of 27 years with nine years of parole ineligibility. The former Immigration

& Naturalization Service (“INS”) issued an Order to Show Cause in September 1992.

The alien then sought a section 212(c) waiver. In August 2000, an immigration judge

heard her request, but denied it. On appeal, the alien argued that the delay in processing

her removal between 1992 and 2000 caused her to become ineligible for a waiver by

placing her beyond the five-year incarceration limit that was a condition of the favorable

exercise of discretion under § 212(c). We rejected the argument because the length of her

state sentence and period of parole ineligibility distinguished her case from that of the

alien in St. Cyr. She knew when she entered her guilty plea that she would almost

certainly be ineligible for the discretionary relief that may otherwise have been available

under § 212(c). Therefore, the reasoning of St. Cyr did not apply. 

.

          Powell’s guilty plea, like the alien’s in Quarantillo, and unlike the alien’s in St.

Cyr, did not raise any hope that he would actually serve less than five years in prison.

                                                 5
Thus, he could not reasonably have relied on continued eligibility for section 212(c) relief

in pleading guilty. Our decision in Ponnapula v. Ashcroft, 

(3d Cir. 2004),

wherein we noted that an alien convicted of an aggravated felony and sentenced to more

than five years imprisonment might have maintained eligibility for section 212(c) relief

provided he had not served five years of the sentence “by the time of his removal

hearing,” 

is not to the contrary. The petitioner in that case, whose state

sentence was one to three years imprisonment, could claim reasonable reliance on the

availability of section 212(c) relief.

       Powell blames the IJ for his late application, contending that the IJ could have

alerted him to the relief available to him during the 2000 master calendar hearings. But

his claim that he is eligible for section 212(c) relief is premised on his having pleaded

guilty in 1995 in order to maintain his eligibility for a waiver. He thus should not be

heard to complain that he was unaware of his right to relief. Furthermore, the IJ was

under no obligation to advise him about potentially available discretionary relief. See

Bonhometre v. Gonzales, 

, 448 n.9 (3d Cir. 2005) (alien has no

constitutional right to be informed of possible eligibility for discretionary relief), cert.

denied, 

(2006).

       For the foregoing reasons, we will deny the petition for review.