2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-24-2008

Allicock v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1679

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008

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 2008 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Allicock v. Atty Gen USA" (2008). 2008 Decisions. Paper 1707.

http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1707
 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 07-1679

_________ 

HERBERT LEVON ALLICOCK,

 Petitioner

 v.

ATTORNEY GENERAL OF THE UNITED STATES,

 

 Respondent

__________________________

On Petition for Review of an Order of the

 Board of Immigration Appeals

(Agency No. A42 672 979)

Immigration Judge: Alberto Riefkohl

___________________________

Submitted under Third Circuit LAR 34.1(a)

September 25, 2007

Before: BARRY, CHAGARES AND ROTH, CIRCUIT JUDGES

(Opinion filed January 24, 2008)

____________

O P I N I O N

____________
 1

 Allicock also applied for asylum and protection under the Convention Against Torture

(CAT). The Immigration Judge (IJ) found that he was not eligible for asylum because of his

conviction, and found that he had not shown that he was likely to be tortured in Guyana.

Allicock did not appeal those determinations to the BIA and does not raise issues regarding

asylum or CAT relief here.

2

PER CURIAM

Herbert Levon Allicock petitions for review of an order of the Board of Immigration

Appeals (BIA), dismissing his appeal from the final removal order of an Immigration Judge

(IJ). We will deny the petition.

Allicock, a native and citizen of Guyana, entered the United States as an immigrant

in 1990. In 2002, he was convicted of possession with intent to distribute over 25 pounds

of marijuana in violation of New Jersey Statutes Annotated (N.J. Stat. Ann.) § 2C:35-5a(1)

and b(10); and of eluding a police officer in violation of N.J. Stat. Ann. § 2C:29-2b. As a

result of the convictions, Allicock was served with a Notice to Appear, charging him with

being removable for having committed an aggravated felony as defined in the Immigration

and Nationality Act (INA) § 101(a)(43)(B) (illicit trafficking in a controlled substance); for

having committed a controlled substance violation; and for having committed an aggravated

felony as defined in INA § 101(a)(43)(F) (crime of violence).

Allicock, proceeding without an attorney, conceded that he had been convicted as

charged, but argued that his “eluding” conviction did not constitute a crime of violence, and

that his convictions were not final.1

 The IJ determined that his convictions were final, and

denied Allicock’s motion to terminate proceedings. A.R. 115. On appeal to the BIA,
 2

 We agree with the Government that this holding is puzzling, but because the BIA

considered only Allicock’s controlled substance violation in considering whether he was

removable, the issue of whether Allicock’s “eluding” conviction constitutes a crime of

violence is moot.

 3

 If we had jurisdiction to consider the issue, we would find that Allicock’s controlled

substance conviction is an aggravated felony, as it would be punishable as a felony under the

Controlled Substances Act. See 21 U.S.C. § 841(b)(1)(D); Wilson v. Ashcroft, 350 F.3d 377,

381 (3d Cir. 2003). The exception found at § 841(b)(4), which provides that “distributing

a small amount of marihuana for no remuneration” is punishable as a misdemeanor, is not

applicable, as 25 pounds of marijuana is not, under any interpretation, a “small amount” of

marijuana.

3

Allicock again argued that his “eluding” conviction did not constitute a crime of violence,

and that his convictions were not final. The BIA held that the IJ did not find him removable

on the basis of the “eluding” conviction,2

 but only on the basis of his controlled substance

violation, agreed that his convictions were final, and agreed that he was removable on the

basis of his controlled substance violation.

In his brief, Allicock raises two issues: (1) that his controlled substance violation is

not an aggravated felony, and (2) that the IJ prejudged his case. As the Government notes,

pursuant to 8 U.S.C. § 1252(d)(1), this Court may only review a final order of removal if

“the alien has exhausted all administrative remedies available to the alien as of right.”

Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003) (alien is required to raise and

exhaust remedies as to each claim or ground for relief to preserve right of judicial review).

Allicock did not present either of the two issues listed above at any level of the

administrative proceedings. Thus, we are without jurisdiction to review his claims.3

For the foregoing reasons, we will deny the petition.