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Papageorgiou v. Gonzales

June 24, 2005

PERIKLIS PAPAGEORGIOU, PETITIONER
v.
ALBERTO R. GONZALES, ATTORNEY GENERAL OF THE UNITED STATES; BUREAU OF CITIZENSHIP AND IMMIGRATION SERVICES, RESPONDENTS



On Appeal from the United States Department of Justice Board of Immigration Appeals (BIA No. A35-090-961).

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

PRECEDENTIAL

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

Submitted pursuant to Third Circuit L.A.R. 34.1(a) on June 9, 2005

Before: AMBRO, VAN ANTWERPEN, and TASHIMA,*fn1 Circuit Judges.

Periklis Papageorgiou seeks review 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.

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")*fn2 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.*fn3 An IJ found against Petitioner on all issues on October 10, 2003. Petitioner appealed to the BIA, which affirmed the IJ 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 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 ...


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