Opinion
No. 05-2815-ag.
October 5, 2007.
Petition for Review of Decision from the Board of Immigration Appeals.
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREEDthat the petition for review of the decision from the Board of Immigration Appeals ("BIA") be DISMISSED in part and DENIED in part.
Submitting for Petitioner: Pro Se
Submitting for Respondent: Monica J. Richards, Assistant United States Attorney for Terrance P. Flynn, United States Attorney for the Western District of New York, Buffalo, NY
Petitioner Smith, a native and citizen of Jamaica, seeks review of a March 28, 2005 order of the BIA affirming the October 4, 2004 decision of the Immigration Judge ("IJ") John B. Reid ordering his removal from the United States. Prior to the enactment, in May 2005, of the REAL ID Act, Smith filed a petition for habeas corpus in the United States District Court for the Western District of New York. Pursuant to the REAL ID Act, the district court transferred the habeas petition to this Court where it has been construed as a petition for review from a final order of removal under 8 U.S.C. § 1252. Marquez-Almanzar v. INS, 418 F.3d 210, 212 (2d Cir. 2005). We assume the parties' familiarity with the facts, proceedings below, and specification of appellate issues.
Because Smith has failed to challenge the status of his conviction as an aggravated felon, under the REAL ID Act, we lack jurisdiction to review "any final order of removal against an alien who is removable by reason of having committed [certain drug and aggravated felony] criminal offense[s]," except insofar as review entails "constitutional claims or questions of law." 8 U.S.C. § 1252(a)(2)(C), (D). Smith raises four claims on appeal: first, he argues that he is entitled to relief under the Convention Against Torture ("CAT"); second, that he is entitled to relief under the Immigration and Nationality Act ("INA") § 212(h) because his removal violates international law that generally prohibits the separation of families; third, that he was detained in violation of his due process rights; and fourth, that his underlying conviction is invalid. All other claims have been waived as they have not been raised on appeal. See Ferran v. Town of Nassau, 471 F.3d 363, 364 (2d Cir. 2006).
First, Smith has not presented a constitutional claim or question of law that allows the court to review the denial of CAT relief, because he argues simply that the IJ should have found him eligible for CAT, based on the record. "[A]bsent clear proof that the factual basis for an IJ's decision was unambiguously contradicted by the record, a petitioner raises no "constitutional claim or question of law" for us to review."Carcamo v. U.S. Dep't of Justice, __ F.3d ___, 2007 WL 2198910 at *3 (2d Cir. Aug. 2, 2007); 8 U.S.C. § 1252(a)(2)(D). Because Smith does not present such clear proof of unambiguous contradiction, we are without jurisdiction to review his denial of CAT relief, and thus his appeal on this ground is dismissed.
Second, Smith raises a question of law when he requests relief from removal under § 212(h) in that he raises the issue of whether he is eligible for such relief. He is not. Section 212(h) makes clear that while the Attorney General can provide relief from removal in certain circumstances, the waiver does not apply to individuals who have been convicted of controlled substance offenses, other than a single offense of simple possession fo marijuana. 8 U.S.C. § 1182(h). Accordingly, the IJ did not err by finding that Smith was ineligible for such relief. Furthermore, this court has held that international law does not trump the statute where Congressional intent is clear. See Guaylupo-Moya v. Gonzales, 423 F.3d 121, 136 (2d Cir. 2005) (holding that § 212(h) is unavailable to aggravated felons and finding petitioner's international law arguments to be without merit).
Third, Smith argues that his detention violated his due process rights. This challenge is moot because he has been released from detention and removed to Jamaica pursuant to his own request to vacate his stay of removal.
Finally, Smith challenges the validity of his underlying conviction. That issue, however, is not reviewable by this court in the context of a petition for a final order of removal. First, the INA provides that this court "shall decide the petition only on the administrative record on which the order of removal is based." 8 U.S.C. § 1252(b)(4)(A). Accordingly, this court has no authority to review the records of Smith's plea before the state court, and, in fact, those records were not before the agency and have not been presented to this court. In addition, it is evident that Smith has had ample opportunity to challenge his conviction, both on direct appeal, and through two separate collateral attacks in state courts. In order to challenge his conviction in federal courts, Smith's only recourse is to file a habeas corpus petition pursuant to 28 U.S.C. § 2254.
For the foregoing reasons, the petition for review is DISMISSED in part and DENIED in part.