Kenneth Durant v. United States Immigration and Naturalization Service

Citations: 393 F.3d 113; 2004 U.S. App. LEXIS 26129Docket: 99-4096-

Court: Court of Appeals for the Second Circuit; December 15, 2004; Federal Appellate Court

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Kenneth Durant, a lawful permanent resident from Barbados with prior convictions for criminal possession of a controlled substance, faced removal proceedings initiated by the Immigration and Naturalization Service (INS). In June 1999, the Board of Immigration Appeals (BIA) ruled that Durant was removable due to his convictions, which constituted aggravated felonies. Although an immigration judge initially granted him withholding of removal based on his HIV-positive status, the BIA later reversed this decision. Durant subsequently filed two petitions for review regarding the BIA's June 1999 final order of removal and an October 1999 order denying his motion to reopen. The Government moved to dismiss both petitions, citing 8 U.S.C. § 1252(a)(2)(C), which prohibits judicial review of final orders of removal for aliens ordered removed due to controlled substance offenses or aggravated felonies. The Court determined it lacked jurisdiction to review both the final removal order and the motion to reopen, thereby granting the Government's motion to dismiss, confirming that the jurisdictional bar under § 1252(a)(2)(C) applies to both types of petitions.

Under 8 U.S.C. § 1227(a)(2)(B)(i), any alien convicted of a controlled substance violation, excluding a single possession offense of 30 grams or less of marijuana, is deportable. Cocaine is classified as a controlled substance, and the court recognizes that a state conviction for cocaine possession falls under this classification. Durant’s 1991 and 1995 cocaine possession convictions are thus deemed violations of controlled substance laws. Consequently, the court lacks jurisdiction to review his removal order.

Additionally, Durant's conviction qualifies as an aggravated felony under 8 U.S.C. § 1101(a)(43)(B), as it constitutes a drug trafficking crime per 18 U.S.C. § 924(c), specifically since his 1995 conviction was a second offense punishable by more than one year of imprisonment, categorizing it as a felony under federal law. 

The court also lacks jurisdiction to review the Board of Immigration Appeals' (BIA) denial of Durant's motion for reconsideration of the removal order. Although final orders of removal and motions to reopen require separate petitions, allowing review of the motion to reopen would circumvent the jurisdictional bar of 8 U.S.C. § 1252(a)(2)(C). This approach would contradict Congressional intent behind the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which aims to expedite the removal of certain convicted legal permanent residents.

The decision aligns with prior rulings from various Circuits regarding the applicability of the jurisdictional bar in 8 U.S.C. § 1252(a)(2) to petitions for reviewing the denial of motions to reopen immigration proceedings. Key cases cited include Assaad v. Ashcroft, which determined that federal courts lack jurisdiction to review motions to reopen when the Board of Immigration Appeals (BIA) upheld an Immigration Judge's decision regarding a good-faith marriage waiver. Similarly, Dave v. Ashcroft and Patel v. United States Attorney General established that federal courts are barred from reviewing motions to reopen when the alien has been ordered removed due to criminal offenses under specified sections of the law. Additionally, Stewart v. INS clarified that the term "order of exclusion or deportation" encompasses an order denying a motion to reopen. Consequently, the Court grants the motion to dismiss Durant's petitions for review under 8 U.S.C. § 1252(a)(2)(C), citing lack of jurisdiction due to Durant's convictions for a controlled substance offense and an aggravated felony.