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Wilson v. Ashcroft

November 26, 2003

EVERALD WILSON, APPELLANT
v.
JOHN ASHCROFT, UNITED STATES ATTORNEY GENERAL; IMMIGRATION & NATURALIZATION SERVICE; WARDEN OF YORK COUNTY PRISON, YORK, PA



On Appeal from the United States District Court for the Eastern District of Pennsylvania (Dist. Ct. No. 03-cv-00652) District Judge: Honorable Stewart Dalzell

Before: Alito, Ambro, and Chertoff, Circuit Judges.

The opinion of the court was delivered by: Chertoff, Circuit Judge.

PRECEDENTIAL

Submitted Under Third Circuit LAR 34.1(a) September 16, 2003

OPINION OF THE COURT

Appellant Everald Wilson, an alien under a final order of removal from the United States, appeals the denial of his application for injunctive relief and his habeas corpus petition seeking to bar both his removal and his custodial detention pending removal. Wilson argues that the Immigration and Naturalization Service ("INS," as it was then known) violated his due process rights by denying his application for an adjustment of immigration status without allowing him to seek a waiver of inadmissibility, and also by preventing him from appealing his order of removal. Wilson also urges that he should be released pending disposition of his case.

Wilson's removal was based on his conviction for possession of marijuana with intent to distribute, in violation of the laws of the State of New Jersey. He argues that despite this conviction, he is eligible for a waiver of inadmissibility and, also, could have successfully overturned INS's removal order. The resolution of this latter issue turns on the specifics of the crime to which he pled. If the state crime was either a state drug trafficking felony or the equivalent of a federal drug felony, then Wilson is not eligible for a waiver, and could not have blocked removal. Because the record is not completely clear, we will remand this case for further proceedings in the District Court.

I.

Wilson is a native and citizen of Jamaica who entered the United States illegally in 1989. On November 17, 1995, Wilson pled guilty to violating N.J. Stat. Ann. § 2C:35-5b(11), a drug offense under New Jersey law entitled "Manufacturing, Distributing or Dispensing." The judgment of conviction indicates that Wilson pled guilty to "possession with intent to distribut[e]" more than one ounce (twenty eight grams) of marijuana. As a first-time offender, Wilson was sentenced to probation with a special condition that he serve forty days in county jail.

Wilson married a U.S. citizen in 1996, and he and his wife had two children. On August 27, 1997, Wilson applied to adjust his status to that of a lawful permanent resident pursuant to Section 245 of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1255. On December 5, 2000, INS notified Wilson that Section 212(a)(2)(C) of the INA rendered him inadmissible for permanent residence due to his 1995 drug conviction. The notice specifically informed Wilson that no waivers existed for inadmissibility predicated on that statutory provision.

In September of 2002, INS arrested Wilson and notified him that it intended to issue a final administrative removal order against him pursuant to 8 U.S.C. § 1228(b). The ensuing final removal order is dated October 5, 2002, but it was apparently not served on Wilson until November 12, 2002. INS sought to remove Wilson from the United States on January 31, 2003.

Wilson filed suit that same day seeking injunctive relief and a writ of habeas corpus. The District Court dismissed Wilson's habeas petition and denied injunctive relief on February 7, 2003. Wilson filed a timely notice of appeal.

II.

This Court has jurisdiction under 28 U.S.C. ยงยง 1291 and 2253(a). Our review of the District Court's legal determinations is plenary, and we review the denial ...


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