Derek Bates v. Eric Holder, Jr.

Filing

UNPUBLISHED OPINION FILED. [10-60644 Affirmed ] Judge: RHB , Judge: JLD , Judge: PRO Mandate pull date is 07/29/2011 [10-60644]

Case: 10-60644 Document: 00511500361 Page: 1 Date Filed: 06/07/2011

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit
FILED
No. 10-60644
Summary Calendar

June 7, 2011
Lyle W. Cayce
Clerk

DEREK PRESTON BATES,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent

Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A034 316 296

Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Proceeding pro se, Derek Preston Bates, a native and citizen of Trinidad
and Tobago, petitions for review of the Board of Immigration Appeals’ (BIA)
decision, dismissing his appeal from the immigration judge’s (IJ) final order of
removal.
Bates was granted lawful permanent resident status in 1974. In 1992, he
was convicted by guilty plea of possession of cocaine with intent to deliver. In
July 2006, Bates returned to the United States after visiting Trinidad and
*

Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.

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No. 10-60644
Tobago and applied for admission as a returning lawful permanent resident.
The Department of Homeland Security (DHS) issued a notice to appear (NTA),
charging him with inadmissibility: under 8 U.S.C. § 1182(a)(2)(A)(i)(II), as an
alien

convicted

of

a

controlled-substance

offense;

and,

later,

under

§ 1182(a)(7)(A)(i)(I), for not possessing a valid entry document at the time of
application for admission. Although Bates admitted the charges, he applied for
a waiver of his 1992 conviction under former Immigration and Nationality Act
§ 212(c), 8 U.S.C. § 1182(c). See INS v. St. Cyr, 533 U.S. 289, 294-95 (2001)
(noting that former § 212(c) authorized permanent resident aliens with lawful
unrelinquished domicile of seven years to apply for discretionary waiver from
deportation).
During a hearing on his waiver application, Bates admitted that he also
had a 2006 conviction for possession of cocaine. In the light of this admission,
DHS moved to pretermit Bates’ waiver application, contending his 2006
conviction rendered him inadmissible and ineligible for relief despite his
eligibility for a § 212(c) waiver. The IJ granted that motion and ordered Bates’
removal.
Bates appealed, contending: he was eligible for a § 212(c) waiver; his 2006
conviction was not a deportable offense; the IJ erred by ordering his deportation
for having committed two possession offenses even though he had not been
charged with the second offense in the NTA; his green card was valid when he
entered the United States in 2006; and DHS had not proven the charges in the
NTA. The BIA dismissed his appeal, holding: even if the 1992 conviction was
waived, Bates would remain inadmissible because of his 2006 conviction. The
BIA found that Bates had admitted the two charges in the NTA and determined
that the IJ had not found inadmissibility based on the 2006 conviction, but
rather had determined that the two convictions precluded eligibility for relief
and that Bates had not shown eligibility for any other form of relief.

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In his petition for review, Bates asserts: he should have been charged with
deportability, rather than excludability, which would shift the burden of proof;
he is eligible for a waiver under § 212(c) for the 1992 offense of possession of
cocaine, with intent to deliver, because he pleaded guilty and has had seven
years of unrelinquished domicile; and his 2006 conviction for cocaine possession
is not a deportable offense because it is a federal misdemeanor and thus not a
drug-trafficking offense.
Generally, our court lacks jurisdiction to review final removal orders of
aliens who have been convicted of a § 1182(a)(2) offense.
§ 1252(a)(2)(C).

8 U.S.C.

That provision does not preclude review, however, of

“constitutional claims or questions of law raised upon a petition for review filed
with an appropriate court of appeals . . . .” Id. at § 1252(a)(2)(D); see Larin-Ulloa
v. Gonzales, 462 F.3d 456, 461 (5th Cir. 2006). Because Bates raised issues of
law regarding eligibility for § 212(c) relief, the nature of the charges against him,
and the impact of his 2006 conviction, this court has jurisdiction over his petition
for review. Marquez-Marquez v. Gonzales, 455 F.3d 548, 561 (5th Cir. 2006)
(noting eligibility for § 212(c) waiver is question of law).
“We have authority to review only an order of the BIA, not the IJ, unless
the IJ’s decision has some impact on the BIA’s decision.” Mikhael v. INS, 115
F.3d 299, 302 (5th Cir. 1997). Factual findings are reviewed for substantial
evidence; questions of law, de novo. E.g., Zhu v. Gonzales, 493 F.3d 588, 594 (5th
Cir. 2007).
To the extent Bates asserts he should have been charged with
deportability, rather than excludability, we lack jurisdiction to address this issue
because he did not raise it before the BIA. Roy v. Ashcroft, 389 F.3d 132, 137
(5th Cir. 2004). Bates’ contention that he was eligible for a § 212(c) waiver of
inadmissibility misapprehends the IJ’s decision; the IJ ruled that, even if Bates
obtained a waiver for his 1992 offense, he would still be ineligible for relief based
on his 2006 conviction. Similarly, Bates’ contention that he was not deportable
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No. 10-60644
based on the 2006 conviction is misplaced because the IJ did not find him
deportable based on that conviction. Rather, the IJ determined that Bates would
remain inadmissible and ineligible for relief based on that conviction.
Bates admitted both charges of inadmissibility in the NTA (that he was
convicted in 1992 and that his permanent resident card was expired when he
applied for admission to the United States in 2006), and bore the burden of
establishing entitlement to relief. 8 C.F.R. § 1240.8(b). Further, during the
waiver hearing, Bates admitted his 2006 conviction for cocaine possession and
DHS supported it with documentation. Because his 2006 conviction would also
have made him inadmissible under § 1182(a)(2)(A)(i)(II), and he was not entitled
to a waiver of this offense because he pleaded guilty to it after § 212(c) relief had
been repealed, this conviction prevents him from meeting his burden of showing
he was otherwise admissible. Other than contending eligibility for a § 212(c)
waiver, Bates has not asserted or shown that he was entitled to any other form
of relief from inadmissibility.
DENIED.

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