2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-12-2010

Wayne Morris v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-2540

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-2540

___________

WAYNE ASTON MORRIS,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent 

____________________________________

Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A044-137-609)

Immigration Judge: Honorable Andrew Arthur

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

November 9, 2010

Before: RENDELL, CHAGARES and ALDISERT, Circuit Judges

(Opinion filed November 12, 2010)

___________

OPINION OF THE COURT

___________

PER CURIAM

Wayne Aston Morris petitions for review of a decision of the Board of 

Immigration Appeals (BIA). For the reasons below, we will deny the petition for review.

Morris, a native of Jamaica, was admitted to the United States in 1993 as a 
2

conditional permanent resident. He became a lawful permanent resident in 1997. In 

February 2009, he was charged as removable as an aggravated felon. Morris proceeded 

pro se and admitted the factual allegations of the charges of removability. The 

Immigration Judge (IJ) found him removable and ineligible for any relief. The IJ ordered 

Morris removed to Jamaica. After proceedings not relevant here, Morris successfully

appealed to the BIA.

Morris argued before the BIA that he was a citizen based on his pending 

application for naturalization and his allegiance to the United States. The BIA concluded 

that Morris had not shown that he was prima facie eligible for naturalization because the 

DHS had not submitted any affirmative communication establishing that Morris would be 

eligible if not for the removal proceedings. It determined that it lacked jurisdiction to 

consider Morris’s constitutional challenges to the immigration laws. Morris filed a 

timely petition for review.

Morris contends that he is a citizen because he filed an application for 

naturalization and has established that he owes permanent allegiance to the United States. 

Under 8 U.S.C. § 1252(b)(5)(A), we have jurisdiction to review a claim of nationality if 

there is no genuine issue of material fact with respect to that claim. The parties do not 

dispute the underlying facts of the claim. We exercise plenary review over Morris’s 

claim of citizenship. Jordon v. Att’y Gen., 424 F.3d 320, 328 (3d Cir. 2005). We have 

held that for a citizen of another country, “nothing less than citizenship will show 

permanent allegiance to the United States.” Salim v. Ashcroft, 350 F.3d 307, 310 (3d Cir. 
3

2003) (internal quotation omitted).

Morris argues that the IJ should have terminated the removal proceedings to allow 

him to pursue his pending naturalization application pursuant to 8 C.F.R. § 1239.2(f). 

That regulation allows for termination of the proceedings if the alien has established 

prima facie eligibility for naturalization and the matter involves exceptionally appealing 

or humanitarian factors. However, in Zegrean v. Attorney General, 602 F.3d 273, 275

(3d Cir. 2010), we held that 8 U.S.C. § 1429 prohibits the Attorney General from 

considering a naturalization application if a removal proceeding is pending against the 

alien. Moreover, Morris’s conviction for an aggravated felony prevents him from 

demonstrating that he is of good moral character as is required for naturalization. See 8 

U. S.C. § 1427(a)(3); 8 U.S.C. § 1101(f)(7), (8).

Morris admits that he was convicted of conspiracy to distribute more than 500 

grams of cocaine. He contends that he was never advised during his criminal 

proceedings that he would be removed from the United States if he pleaded guilty. 

Removal proceedings, however, are not the appropriate venue for Morris to collaterally 

challenge his convictions. See Drakes v. INS, 330 F.3d 600 (3d Cir. 2003). Morris does 

not allege that he has filed any challenge to his convictions. Even if he had, the pendency 

of a post-conviction motion does not negate the finality of a conviction for immigration 

purposes until the conviction is overturned. Paredes v. Att’y Gen., 528 F.3d 196, 198-99 

(3d Cir. 2008).

Morris argues that he qualifies for a waiver of removal under former 8 U.S.C. §§
4

212(c) & (h). However, he concedes that he is not eligible for such relief as an 

aggravated felon. Morris also argues that he is challenging the constitutionality of the 

immigration laws. He does not specify which statutes he challenges or explain how they 

violate the Constitution. Before the BIA, he contended that his removal would violate the 

Constitution if the hardship to his citizen children and wife is not considered. Morris’s 

removal will not violate any substantive right of his or his family protected by the Due 

Process clause. See Morales-Izquierdo v. Dep’t of Homeland Sec., 600 F.3d 1076, 1091 

(9th Cir. 2010). Moreover, Morris admitted that waivers of removal pursuant to § 212(c) 

and § 212(h) are unavailable to legal permanent residents who were aggravated felons 

and conceded that this distinction had survived rational basis scrutiny. A.R. at 17; see

DiPeppe v. Quarantillo, 337 F.3d 326 (3d Cir. 2003); De Leon-Reynoso v. Ashcroft, 293 

F.3d 633, 638 (3d Cir. 2002). 

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