Daniel Excellent v. Eric Holder, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: A036-467-989. Copies to all parties and the district court/agency. [999107921]. [12-1992]

Appeal: 12-1992

Doc: 36

Filed: 05/15/2013

Pg: 1 of 4

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-1992

DANIEL EXCELLENT, a/k/a Danny Excellent,
Excellent, a/k/a Thomas Excellent,

a/k/a

David

Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.

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

Submitted:

May 7, 2013

Decided:

May 15, 2013

Before SHEDD, DUNCAN, and KEENAN, Circuit Judges.

Petition dismissed in part and denied in part by unpublished per
curiam opinion.

Paul O’Dwyer, New York, New York, for Petitioner.
Stuart F.
Delery, Principal Deputy Assistant Attorney General, Stephen J.
Flynn, Assistant Director, Robert Michael Stalzer, Office of
Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 12-1992

Doc: 36

Filed: 05/15/2013

Pg: 2 of 4

PER CURIAM:
Daniel

Excellent,

a

native

and

citizen

of

Haiti,

petitions for review of an order of the Board of Immigration
Appeals

(“Board”)

dismissing

his

appeal

from

the

immigration

judge’s denial of Excellent’s request for protection under the
Convention Against Torture and denying his request to renew his
application

for

a

waiver

of

inadmissibility

under

§ 212(c) of the Immigration and Nationality Act.
§ 1182(c) (1994) (repealed 1996).

former

See 8 U.S.C.

For the reasons discussed

below, we dismiss the petition for review in part and deny the
petition in part.
Pursuant to 8 U.S.C. § 1252(a)(2)(C) (2006), we lack
jurisdiction, except as provided in 8 U.S.C. § 1252(a)(2)(D)
(2006), to review the final order of removal of an alien who is
removable
crimes,

for

having

including

been

convicted

controlled

§ 1252(a)(2)(C),

we

determinations

that

retain

of

substance

jurisdiction

trigger

the

certain

enumerated

offenses.
“to

Under

review

factual

jurisdiction-stripping

provision, such as whether [Excellent] [i]s an alien and whether
[]he has been convicted of [a controlled substance offense].”
Ramtulla v. Ashcroft, 301 F.3d 202, 203 (4th Cir. 2002).
we

confirm

these

§ 1252(a)(2)(C),

two
(D),

factual
we

determinations,

can

only

2

consider

under

8

Once
U.S.C.

“constitutional

Appeal: 12-1992

Doc: 36

Filed: 05/15/2013

claims or questions of law.”

Pg: 3 of 4

§ 1252(a)(2)(D); see Turkson v.

Holder, 667 F.3d 523, 527 (4th Cir. 2012).
Because Excellent has conceded that he is a native and
citizen of Haiti and that he has been convicted of a controlled
substance offense, we lack jurisdiction over the petition for
review absent a colorable constitutional claim or question of
law.

8

U.S.C.

§ 1252(a)(2)(C).

We

therefore

dismiss

the

petition for review in part.
To the extent that Excellent raises claims that fall
under the jurisdictional exception set forth in § 1252(a)(2)(D),
we have thoroughly reviewed these claims and the administrative
record and we conclude that those claims lack

merit.

Excellent

cannot state a colorable due process claim “because he has no
property or liberty interest in the ‘right’ to discretionary
section 212(c) relief.”

Smith v. Ashcroft, 295 F.3d 425, 430

(4th Cir. 2002); see Dekoladenu v. Gonzales, 459 F.3d 500, 508
(4th Cir. 2006) (“No property or liberty interest can exist when
the

relief

sought

is

discretionary.”),

abrogated

grounds by Dada v. Mukasey, 554 U.S. 1 (2008).

on

other

Additionally, we

discern no error in the Board’s findings that its April 28, 2006
decision affirming the immigration judge’s denial of § 212(c)
relief was final, and that Excellent waived further review of
the issue.

See Jungming Li v. Holder, 656 F.3d 898, 904 n.1

(9th Cir. 2011) (explaining that nothing in Matter of M-D-, 24
3

Appeal: 12-1992

Doc: 36

Filed: 05/15/2013

Pg: 4 of 4

I. & N. Dec. 138, 141 (B.I.A. 2007), “suggests that a petitioner
could use the remand as a venue to challenge orders denying
relief that the [Board] has affirmed,” and clarifying that the
case

merely

recognizes

the

immigration

judge’s

authority

to

consider new evidence if it would support a motion to reopen the
proceedings).
Accordingly,

we

dismiss

the

part and deny the petition in part.

petition

for

review

in

We dispense with oral

argument because the facts and legal contentions are adequately
presented in the materials before this Court and argument would
not aid the decisional process.
PETITION DISMISSED IN PART
AND DENIED IN PART

4