UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-1855 

JEAN MURAT MONTREVIL,

Petitioner,

versus

ALBERTO R. GONZALES, Attorney General of the

United States,

Respondent.

On Petition for Review of an Order of the Board of Immigration

Appeals. (A40-135-785)

Submitted: February 28, 2006 Decided: March 16, 2006

Before WILKINSON, WILLIAMS, and GREGORY, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Jean Murat Montrevil, Petitioner Pro Se. Virginia Benson Evans,

John Walter Sippel, Jr., OFFICE OF THE UNITED STATES ATTORNEY,

Baltimore, Maryland; Song E. Park, Office of Immigration

Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
*

Section 106(c) of the Act requires the transfer of any § 2241

petition filed by an alien and challenging, among other things, a

final administrative order of deportation pending in the district

court on the effective date of the Act, May 11, 2005. 119 Stat. at

311.

- 2 -

PER CURIAM:

Jean Murat Montrevil, a native and citizen of Haiti,

petitions this court for review of a 1994 decision of the Board of

Immigration Appeals (“Board”) finding him ineligible for § 212(c)

waiver of deportation under 8 U.S.C. § 1182(c) (1994) (repealed in

1996). Montrevil filed this proceeding in the district court as a

28 U.S.C. § 2241 (2000) petition for habeas corpus relief. The

district court properly transferred the proceeding to this court

upon enactment of the REAL ID Act of 2005, Pub. L. No. 109-13, 119

Stat. 231, 311 (“the Act”).* In accordance with the Act, we have

reviewed Montrevil’s case “as if it had been filed pursuant to a

petition for review” under 8 U.S.C.A. § 1252 (West 2000 & Supp. II

2005). 119 Stat. at 311.

Although a current challenge to a 1994 Board decision

would normally be untimely under § 1252(b)(1), § 106(c) renders the

normal time limits inapplicable to cases transferred under that

provision. 119 Stat. at 311. The Board found Montrevil ineligible

for § 212(c) relief because, by the time of its decision, Montrevil

had been imprisoned for over five years on an aggravated felony

conviction. Under a 1990 amendment to § 212(c), “aliens convicted

of an aggravated felony who had served a term of imprisonment of at
- 3 -

least five years” are barred from seeking the discretionary waiver

under § 212(c). DeOsorio v. INS, 10 F.3d 1034, 1036 (4th Cir.

1993). At the time of the immigration judge’s decision denying

Montrevil § 212(c) relief in the exercise of his discretion,

Montrevil was ten days short of having served five years on his

aggravated felony. By the time of the Board’s decision, he had

served over five years, and the Board therefore found him

ineligible for § 212(c) relief. On appeal, Montrevil challenges

this ruling. 

The First Circuit has recently affirmed the position

taken by the Board in this case that “an alien continues to accrue

time toward the five-year bar to section 212(c) relief after the

issuance of a final order of removal.” Fernandes Pereira v.

Gonzales, 417 F.3d 38, 42 (1st Cir. 2005). See also BuitragoCuesta v. INS, 7 F.3d 291, 293-96 (2d Cir. 1993) (holding that the

five year period is not measured as of the date the § 212(c)

application is filed but as of the time of the final administrative

decision). We agree with these decisions and therefore deny

Montrevil’s petition for review. We dispense with oral argument

because the facts and legal contentions are adequately presented in

the materials before the court and argument would not aid the

decisional process.

PETITION DENIED