2005 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-24-2005

Papageorgiou v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 04-3135

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 04-3135

 

PERIKLIS PAPAGEORGIOU,

Petitioner

v.

* ALBERTO R. GONZALES, Attorney General of the

United States; BUREAU OF CITIZENSHIP AND

IMMIGRATION SERVICES,

Respondents

* Substituted pursuant to Rule 43c, F.R.A.P.

 

On Appeal from the United States Department of Justice 

Board of Immigration Appeals

(BIA No. A35-090-961)

Submitted pursuant to Third Circuit L.A.R. 34.1(a)

on June 9, 2005

 

Before: AMBRO, VAN ANTWERPEN, and TASHIMA,* 

Circuit Judges.

* The Honorable A. Wallace Tashima, Senior United States

Circuit Judge for the United States Court of Appeals for the

Ninth Circuit, sitting by designation.
2

(Filed: June 24, 2005)

John D. Perez, Esq.

41-51 Wilson Avenue, 2nd Floor

Newark, New Jersey 07105

Counselor for Petitioner

Peter D. Keisler

Assistant Attorney General, Civil Division

Linda S. Wernery

Senior Litigation Counsel, Civil Division

William C. Peachey, Attorney

Janice K. Redfern, Attorney

Office of Immigration Litigation

United States Department of Justice

Civil Division 

P.O. Box. 878, Ben Franklin Station

Washington, D.C. 20044

Counselor for Respondent

_____

 OPINION OF THE COURT

 

VAN ANTWERPEN, Circuit Judge.

Periklis Papageorgiou seeksreview of a final order of the

Board of Immigration Appeals (“BIA”) summarily affirming an

order of removal by an Immigration Judge (“IJ”). For the

reasons that follow, we will deny the petition.
 On March 1, 2003, the INS ceased to exist as an agency 1

within the Department of Justice and the INS’s functions were

transferred to the Department of Homeland Security. See Homeland

Security Act of 2002, Pub.L. No. 107-296 §§ 441, 451 & 471, 116

Stat. 2135.

 CAT refers to the United Nations Convention Against

2

Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, implemented in the

United States by the Foreign Affairs Reform and Restructuring Act

of 1998, Pub.L. No. 105-277, § 2242, 112 Stat. 2681-761 (codified

at 8 U.S.C. § 1231).

3

I.

Papageorgiou is a native and citizen of Greece who

entered the United States in 1978, later becoming a permanent

resident. On September 25, 1998, he was convicted in the

United States District Court for the District of Maryland,

pursuant to a plea agreement, of the offense of Distribution of

Cocaine in violation of 21 U.S.C. § 841(a)(1). He was

sentenced to 46 months in prison. Based on that conviction, the

former Immigration and Naturalization Service (“INS”)1

charged him with removability pursuant to §§ 237(a)(2)(A)(iii)

and (B)(I) of the INA, 8 U.S.C. § 1227 (a)(2)(A)(iii) and (B)(I),

as an alien convicted of an aggravated felony, a controlled

substance offense, and trafficking in a controlled substance.

Papageorgiou subsequently sought relief under Article III of the

United Nations Convention Against Torture (“CAT”), alleging

the government of Greece would not be able to protect him from

his former business partner if Petitioner was removed to

Greece. An IJ found against Petitioner on all issues on October 2

10, 2003. Petitioner appealed to the BIA, which affirmed the IJ
4

without issuing a separate opinion on June 29, 2004, pursuant to

8 C.F.R. § 1003.1(e)(4). This petition for review followed.

II.

Where the BIA summarily affirms an IJ’s decision

without issuing a separate opinion, we normally review the IJ’s

decision itself. See Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir.

2003) (en banc). Here, however, the government argues that we

lack jurisdiction to do so. In support of its position, the

government contends that INA § 242(a)(2)(C), 8 U.S.C. § 1252

(a)(2)(C) divests courts of appeals of jurisdiction to review the

removal orders of aliens who are removable on the basis of

having committed certain crimes, including drug-trafficking

crimes. 

As we have previously observed, this Court has always

retained “jurisdiction to determine our jurisdiction” under §

242(a)(2)(C) with respect to both of the predicate facts required

for application of § 242(a)(2)(C) – first, whether a petitioner is

in fact an alien, and, second, whether he or she is indeed

removable by reason of having been convicted of one of the

enumerated offenses in INA § 242(a)(2)(C). Patel v. Ashcroft,

294 F.3d 465, 468 (3d Cir. 2002) (citing Drakes v. Zimski, 240

F.3d 246, 247 (3d Cir. 2002)). 

Until May 11 of this year, if both of these conditions

were satisfied, then further adjudication of a petition for review

was prohibited under INA § 242(a)(2)(C), and we would dismiss

the petition for lack of jurisdiction. Id. at 248. That would have

been the case here, as it is undisputed that Papageorgiou is a

permanent resident alien and that he does not contest his drug
5

trafficking conviction under 21 U.S.C. § 841(a)(1) for

distributing cocaine. 

This jurisdictional framework for aliens convicted of

certain enumerated offenses was restructured by Congress and

the President on May 11, 2005, however, when the President

signed into law the REAL ID Act of 2005, Pub.L. No. 109- 13,

119 Stat. 231 (the “Act”). Relevant to this appeal is Section

106(a)(1)(A)(iii) of the Act, which amends 8 U.S.C. § 1252 by

adding a new provision, § 1252(a)(2)(D), as follows: 

Judicial Review of Certain Legal Claims.- 

Nothing in subparagraph (B) or (C), or in any

other provision of this Act (other than this

section) which limits or eliminates judicial

review, shall be construed as precluding review of

constitutional claims or questions of law raised

upon a petition for review filed with an

appropriate court of appeals in accordance with

this section.

With this amendment, Congress evidenced its intent to restore

judicial review of constitutional claims and questions of law

presented in petitions for review of final removal orders. This

now permits all aliens, including criminal aliens, to obtain

review of constitutional claims and questions of law upon the

filing of a petition for review with an appropriate court of

appeals. We reach this conclusion because Congress has

provided that nothing in 8 U.S.C. § 1252(a)(2)(B), (C), or any

other provision of the INA shall preclude judicial review of such

orders, unless such review is barred by some other provision of

8 U.S.C. § 1252. For this reason, we believe that, with passage
6

of the Act, Congress has repealed all jurisdictional bars to our

direct review of constitutional claims and questions of law in

final removal orders other than those remaining in 8 U.S.C. §

1252 (e.g., in provisions other than (a)(2)(B) or (C)) following

the amendment of that section by the Act. 

We observe that the Ninth Circuit, the only other court of

appeals to have considered this question thus far, has reached

the same conclusion. See Fernandez-Ruiz v. Gonzales, __ F.3d

__, 2005 WL 1301593 (9th Cir. May 31, 2005), at *1

(concluding that alien petitioner’s convictions did not divest

court of jurisdiction pursuant to § 1252(a)(2)(B) because REAL

ID Act restores judicial review of constitutional claims and

questions of law presented in petitions for review pursuant to

new provision § 1252(a)(2)(D)).

We must next determine the effective date of the Act to

see if it applies to Papageorgiou’s petition. Our review of the

Act confirms that Congress expressly intended that the

amendments restoring our jurisdiction be applied retroactively

to pending petitions for review. The Act states that §

1252(a)(2)(D) “shall take effect upon the date of the enactment"

and that it shall apply to any case “in which the final

administrative order of removal, deportation, or exclusion was

issued before, on, or after the date of the enactment.” § 106(b).

Given this statutory language, we conclude that § 1252(a)(2)(D),

as added by the Act on May 11, 2005, applies to Papageorgiou’s

petition for review, as well as to all other pending or future

petitions for direct review challenging final orders of removal,

except as may otherwise be provided in § 1252. The Ninth

Circuit’s conclusion concurs with ours. See Fernandez-Ruiz, __

F.3d __ at *1 (“§ 1252(a)(2)(D), as added by the REAL ID Act,

applies to . . . all other pending or future petitions for direct
7

review challenging final orders of removal, except as may be

otherwise provided in § 1252 itself”).

III.

Because we are no longer jurisdictionally barred from

reviewing Papageorgiou's petition for review on account of his

past conviction, we now turn to review his petition on the

merits. Papageorgiou’s asserted constitutional claim is that the

BIA's summary affirmance of the IJ's decision deprived him of

due process because it was rendered without a separate BIA

opinion. We have previously held that due process challenges

to such summary BIA affirmances are without merit. See Dia

v. Ashcroft, 353 F.3d at 238 (“We agree with our sister courts of

appeals . . . that the streamlining regulations [which allow for

BIA affirmances of IJ decisions without separate opinions] do

not violate the Due Process Clause of the Constitution.”).

IV.

For the foregoing reasons, the petition for review is

denied.