Hensworth Douglas v. John Ashcroft, Attorney General of the United States of America

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
No. 04-1906
HENSWORTH DOUGLAS,
Petitioner
v.
JOHN ASHCROFT, ATTORNEY
GENERAL OF THE UNITED STATES
OF AMERICA,
Respondent
Petition for Review of an Order
of the Board of Immigration Appeals
(A40-387-915)
Sur Motion Submitted Under Third
Circuit LAR 34.1(a) May 19, 2004
Before: SLOVITER, McKEE, and
BECKER, Circuit Judges
(Filed: July 8, 2004 )
OPINION OF THE COURT
SLOVITER, Circuit Judge.
The motion by the petitioner
Hensworth Douglas for a stay of removal
was routed to a motion panel of this court
in accordance with our procedure.
Douglas sought the stay of removal
pending our final decision on his petition
for review of the Board of Immigration
Appeals’ (“BIA”) order denying his
application for cancellation of removal
under 8 U.S.C. § 1229b(a) and ordering
his removal to Jamaica. Respondent, the
Attorney General, has filed a motion to
dismiss Douglas’ petition for lack of
subject matter jurisdiction. The central
question before us on the merits is whether
we may review a final order of the BIA
based on two alternative legal grounds
when we are without jurisdiction to review
the order based on one of those grounds.
This appeal also gives us the opportunity
to set forth for the first time in a
precedential opinion the standard that we
follow in ruling on a motion for a stay of
removal pending a decision on the Petition
for Review.
Background
Douglas entered the United States
with a valid visa in 1987. He received
lawful permanent resident status sometime
thereafter. Douglas was convicted under
Delaware law in October 2002 for
trafficking of cocaine. In June 2003, the
Department of H omeland S ecurity
(“DHS”) issued a Notice to Appear
charging Douglas with being subject to

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removal from the United States, pursuant
to 8 U.S.C. § 1227 (a)(2)(A)(iii) and
(a)(2)(B)(i), as an alien convicted of an
“aggravated felony” as well as of certain
controlled substance offenses. Douglas
admitted to the Delaware conviction
during a hearing before an Immigration
Judge (“IJ”), who found Douglas to be an
alien subject to removal under §
1227(a)(2)(B)(i). The IJ, however, ruled
that § 1227(a)(2)(A)(iii) is inapplicable to
Douglas on the ground that the underlying
Delaware drug conviction did not
constitute an “aggravated felony” based on
our decision in Gerbier v. Holmes, 280
F.3d 297 (3d Cir. 2002). IJ’s Op. at 1-2.
Neither Douglas nor the DHS challenged
these findings before the BIA or before us
here.
The DHS subsequently amended
the Notice to Appear, charging Douglas
with being subject to removal, again
pursuant to § 1227(a)(2)(A)(iii), as an
alien convicted of the “aggravated felony”
of “murder, rape, or sexual abuse of a
minor” under 8 U.S.C. § 1101(a)(43)(A).
This charge was based on Douglas’ 1992
conviction under New York State Penal
Law Sec tion 130 .20 for “sexual
misconduct,” a misdemeanor under New
York state law.1
The IJ, in an oral decision dated
November 20, 2003, found that Douglas’
“sexual misconduct” conviction under
New York state law did not constitute an
“aggravated felony” under the Immigration
and Naturalization Act (“INA”). Having
determined that the Section 130.20 of the
New York Penal Code is a divisible statute
that covers both aggravated felony and
non-aggravated felony offenses as defined
by 8 U.S.C. § 1101(a)(43)(A), the IJ ruled
that the DHS failed to establish through
evidence that Douglas’ conviction under
Section 130.20 was pursuant to a portion
of the section that qualifies as an
“aggravated felony.” IJ’s Op. at 9-11.
The IJ also rejected the DHS’s contention
that Douglas’ “sexual misconduct”
conviction qualifies as a crime of moral
turpitude. IJ’s Op. at 10-11. Having thus
1 New York State Penal Law
Section 130.20, at the time of Douglas’
conviction, states:
A person is guilty of sexual
misconduct when:
1. He or she engages in
sexual intercourse with
another person without
such person’s consent; or
2. He or she engages in
deviate sexual intercourse
with another person
without such person’s
consent; or
3. He or she engages in
sexual conduct with an
animal or a dead human
body.
Sexual misconduct is a class A
misdemeanor.
N.Y. Penal Law § 130.20 (McKinney
1992).

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determined that Douglas has not
committed an “aggravated felony,” the IJ
ruled that Douglas was eligible to apply
for cancellation of removal under 8 U.S.C.
§ 1229b(a).2 The IJ then granted the
application for cancellation of removal
after she balanced the hardship to Douglas
and his family members against his
criminal history.
On appeal, the BIA vacated the IJ’s
decision regarding the “aggravated felony”
charge and ordered Douglas’ removal from
the United States. The BIA ruled that
Douglas’ 1992 “sexual misconduct”
conviction qualified as an “aggravated
felony” based on the charging instrument
from that conviction, as submitted by the
DHS, which reflected that Douglas
engaged in “nonconsensual sexual
intercourse with a 14-year-old female”
victim. BIA’s Op. at 2. It found that
because this description of Douglas’
offense fulfilled the necessary elements for
“sexual abuse of a minor” under 8 U.S.C.
§ 1101(a)(43)(A), as defined by the BIA’s
decision in Matter of Rodriguez-
Rodriguez, 22 I. & N. Dec. 991 (BIA
1999), Douglas’ conviction falls within the
portion of New York Penal Law Section
130.20 that qualified as an “aggravated
felony” under the INA, which rendered
Douglas ineligible for cancellation of
removal under 8 U.S.C. § 1229b(a).3 The
BIA therefore ruled that Douglas’
“applications for relief from removal are
pretermitted and [Douglas] is ordered
removed to Jamaica.” BIA’s Op. at 3.
Douglas filed his petition for
review on April 2, 2004, challenging only
the BIA’s ruling with respect to the
“aggravated felony” issue. He thereafter
filed an emergency motion on May 4, 2004
to stay his removal pending our review of
his petition. The Attorney General
responded with a motion to dismiss
Douglas’ petition based on our lack of
j u r is d i c ti o n u n d e r 8 U .S.C . §
2 8 U.S.C. § 1229b(a) states:
(a) Cancellation of removal
for certain permanent
residents.
The Attorney General may
cancel removal in the case
of an alien who is
inadmissible or deportable
from the United States if
the alien –
(1) has been an alien
lawfully admitted for
permanent residence for
not less than 5 years,
(2) has resided in the
United States continuously
for 7 years after having
been admitted in any status,
and
(3) has not been convicted
of any aggravated felony.
3 The BIA also found that Douglas’
2002 Delaware controlled substance
conviction “render[ed] him ineligible for
a waiver under former section 212(c) of
the [INA], 8 U.S.C. § 1182(c), despite
INS v. St. Cyr, 533 U.S. 289 (2001) . . .
.” Douglas raises no issue with respect
to that portion of the BIA’s decision.

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1252(a)(2)(C),4 to review the BIA’s order
of removal against Douglas due to the IJ’s
finding that Douglas’ Delaware drug
offense conviction qualified as a
controlled substance offense under 8
U.S.C. § 1227(a)(2)(B)(i). We granted
Douglas’ motion to stay removal so that
we would have an opportunity to consider
the legal issue with respect to our
jurisdiction, but we will now dismiss
Douglas’ petition for review for lack of
subject matter jurisdiction.
Discussion
A. Douglas’ Motion for Stay of
Removal
As we noted above, we have not
previously addressed the standard of
review for assessing a motion to stay
removal of an alien pending judicial
review. Most courts of appeals, however,
have applied the standard for granting a
preliminary injunction in examining
requests for a stay of removal. Under the
preliminary injunction stand ard, a
petitioner requesting a stay of removal
must demonstrate (1) a likelihood of
success on the merits of the underlying
petition; (2) that irreparable harm would
occur if a stay is not granted; (3) that the
potential harm to the moving party
outweighs the harm to the opposing party
if a stay is not granted; and (4) that the
granting of the stay would serve the public
interest. Arevalo v. Ashcroft, 344 F.3d 1,
7-8 (1st Cir. 2003); Mohammed v. Reno,
309 F.3d 95, 100 (2d Cir. 2002); Bejjani v.
INS, 271 F.3d 670, 688-89 (6th Cir. 2001).
The Ninth Circuit applies a two-pronged
standard of review that provides that a stay
of removal should be granted when an
alien shows “either (1) a probability of
success on the merits and the possibility of
irreparable injury, or (2) that serious legal
questions are raised and the balance of
hardships tips sharply in the petitioner’s
favor.” Andreiu v. Ashcroft, 253 F.3d 477,
483 (9th Cir. 2001) (en banc) (quoting
Abbassi v. INS, 143 F.3d 513, 514 (9th
Cir. 1998)). This standard collapses the
traditional four-prong test. For the sake of
providing both linguistic and analytic
clarity, we adhere to the traditional four-
part framework for the preliminary
injunction standard.
The Court of Appeals for the
Eleventh Circuit, however, applies a more
stringent standard that requires petitioners
to produce “clear and convincing
evidence” that the execution of the
removal order is prohibited by law. Weng
4 8 U.S.C. § 1252(a)(2)(C) states:
Notwithstanding any other
provision of law, no court
shall have jurisdiction to
review any final order of
removal against an alien
who is removable by
reason of having
committed a criminal
offense covered in section
1182(a)(2) or
1227(a)(2)(A)(iii), (B), (C),
or (D) of this title . . . .

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v. United States Att’y Gen., 287 F.3d
1335, 1337 (11th Cir. 2002). That court
based its holding on the language of 8
U.S.C. § 1252(f)(2), which prohibits courts
from enjoining the removal of any alien
pursuant to a final order “unless the alien
shows by clear and convincing evidence
that the entry or execution of such order is
prohibited as a matter of law.” Weng, 287
F.3d at 1338. But see Bonhomme-Ardouin
v. United States Att’y Gen., 291 F.3d
1289, 1290-91 (11th Cir. 2002) (Barkett,
J., joined by Wilson, J., concurring)
(stating that “Weng applied the wrong
standard for a motion for temporary stay of
deportation pending appeal” and urging
the court to reconsider the issue en banc).
See generally Kenyeres v. Ashcroft, 538
U.S. 1301, 1303-05 (2003) (discussing
differing standards applied by various
Courts of Appeals but declining to decide
the issue).
We now join the First, Second, and
Sixth Circuits in holding that the proper
standard of review for motions to stay
removal is the traditional four-part test
used for adjudicating motions for
preliminary injunction, as we set forth
above. The opinions in Mohammed, 309
F.3d at 99-100, and in Arevalo, 344 F.3d
at 7-9, both set forth clear multi-level
analyses of why 8 U.S.C. § 1252(f)(2)
applies only to permanent prohibitions of
removal and not to motions to stay the
execution of a removal order, and we are
persuaded by the reasoning in those
opinions to reject the Eleventh Circuit’s
“clear and convincing evidence”
requirement. We also agree with the Ninth
Circuit that the “clear and convincing
evidence” standard is inapplicable to
motions to stay removal pending judicial
review of the underlying petition. See
Andreiu, 253 F.3d at 480-83. As 8 U.S.C.
§ 1252(b)(3)(B), which in effect requires
petitioners subject to a removal order to
affirmatively seek a stay of removal from
the reviewing court, provides no standard
for reviewing such motions to stay
removal, we will apply the traditional
standard for reviewing a motion to stay an
administrative agency order pending
judicial review of the underlying petition
or appeal – the preliminary injunction
standard.5
B. Douglas’ Petition for Review and
the Attorney General’s Motion to
Dismiss for Lack of Jurisdiction
In the usual case, we would turn to
application of the four-part test for a stay
5 We realize that the threshold for
meeting the “likelihood of success on the
merits” requirement is somewhat vague
and open to various interpretations.
Were we to reach the issue in this case, it
would be relevant that the IJ and the BIA
differed in their rulings with respect to
Douglas’ 1992 sexual misconduct
conviction as an aggravated felony, and
this court had not previously reviewed
this issue. In view of our decision on
jurisdiction, this is not the appropriate
case to analyze that issue.

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of removal discussed above, starting with
Douglas’ likelihood of success on his
petition for review of the BIA’s ruling on
the aggravated felony issue. Here,
however, we must first address the
Attorney General’s motion to dismiss
Douglas’ petition due to lack of subject
matter jurisdiction because each court
must first satisfy itself of its own
jurisdiction. United States v. Touby, 909
F.2d 759, 763 (3d Cir. 1990).
The BIA vacated only the portion of
the IJ’s decision holding that Douglas’
1992 New York sexual misconduct
conviction was not an “aggravated felony”
and that Douglas was therefore eligible for
cancellation of removal; the BIA did not
review the IJ’s decision regarding
Douglas’ 2002 Delaware controlled
substance conviction, which also rendered
Douglas subject to removal under the INA.
Douglas, in fact, did not challenge before
the BIA or here the IJ’s finding that he is
removable from the United States on the
ground of his Delaware drug conviction.
Undoubtedly, Douglas follows that course
because he would be qualified to seek the
discretionary relief of cancellation of
removal if he is found removable only on
the controlled substance conviction but not
if he has a prior conviction that qualifies as
an “aggravated felony.” 8 U.S.C. §
1229b(a). The scope of our review,
therefore, includes both the BIA’s decision
and the portion of the IJ’s decision that
was left unchallenged in front of the BIA.
See Xie v. Ashcroft, 359 F.3d 239, 242 (3d
Cir. 2004).
The Attorney General contends that
under 8 U.S.C. § 1252(a)(2)(C), we have
no jurisdiction to review Douglas’ petition
for review because of Douglas’ controlled
substance conviction, even though
Douglas’ petition challenges only the
BIA’s determination that the 1992 “sexual
misconduct” conviction qualifies as an
“aggravated felony” under the INA.
However, we have jurisdiction pursuant to
8 U.S.C. § 1252(a)(1) and (b) “to
determine our jurisdiction under [8 U.S.C.]
§ 1252(a)(2)(C).” Drakes v. Zimski, 240
F.3d 246, 247 (3d Cir. 2001).
We have previously noted the
jurisdictional question of reviewing one of
two alternative reasons supporting a final
order of removal when the other reason,
which is not challenged by the petitioning
party, deprives us of jurisdiction to review
the same order of removal. In Nugent v.
Ashcroft, 367 F.3d 162 (3d Cir. 2004), we
framed the question in the following
manner: “If we do not have jurisdiction to
review the order based on one of the
reasons . . . what authority do we have to
review another reason supporting the order
. . . ?” Id. at 166-67. We did not have to
address that question in Nugent, however,
because the petitioner in that case had also
filed a petition for a writ of habeas corpus
under 28 U.S.C. § 2241 challenging the
BIA’s ruling on the same grounds as that
in his original petition for review in a
petition. The subsequent consolidation of
the original petition for review and the
habeas corpus petition allowed us to
address the merit of Nugent’s argument in
our review of the habeas corpus petition.
Because Douglas has not filed a habeas

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corpus petition addressing the same
argument he has presented in his petition
for review here, the jurisdictional
argument is now properly before us.
Section 1252(a)(2)(C) provides that
no court has jurisdiction to review “any
final order of removal” against an alien
who is found removable for having
committed a criminal offense covered by,
among others, 8 U.S.C. § 1227(a)(2)(B).
T h e pla in lang uage of se ctio n
1252(a)(2)(C) deprives us of jurisdiction to
review a final removal “order” from the
BIA rather than the ground on which the
removal order was based. This is
consistent with the INA’s overall structure
of allowing for “[j]udicial review of a final
order of removal,” 8 U.S.C. § 1252(a)(1),
rather than particular reasons supporting
such order. See also § 1252(b), (d), (g).
Indeed, if we reject the BIA’s
determination that Douglas’ 1992
conviction of sexual misconduct qualifies
as an “aggravated felony,” the BIA’s final
order of removal remains intact based on
Douglas’ 2002 drug conviction; the BIA’s
order of removal stand s on th e
independent basis of the other reason
which is not subject to judicial review
under the INA. Therefore Douglas, having
conceded his removability from the United
States based on the 2002 conviction, does
not actually petition us to review a “final
order of removal” which is, based on his
concession, not subject to judicial review.6
We therefore hold that we have no
jurisdiction to review the BIA’s order of
removal under 8 U.S.C. § 1252(a)(2)(C)
6 In Flores-Garza v. INS, 328 F.3d
797, 802 (5th Cir. 2003), the Court of
Appeals in the Fifth Circuit confronted
the same jurisdictional issue. It also
concluded that it had no jurisdiction to
review an alien’s petition to review a
final order of removal based on the
alien’s uncontested controlled substance
convictions, reasoning:
Although the order of
removal cites two bases for
removal – i.e., Flores’s
1991 and 1996 marijuana
convictions and Flores’s
1972 burglary conviction –
there is only one “order” to
be reviewed. Once we
determine that the order of
removal before us is based
independently on Flores’s
controlled substance
offenses covered by 8
U.S.C. § 1227(a)(2)(B), the
jurisdiction-stripping
provisions of § 1252
clearly apply, and it does
not matter for the purposes
of determining the scope of
our jurisdiction under §
1252(a)(2)(C) that the
order of removal is also
based on an aggravated
felony conviction that
Flores argues is not
actually covered by 8
U.S.C. § 1227(a)(2)(A)(iii).
Id. (emphasis in original).

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based on his 2002 Delaware controlled
substance conviction, and we will grant the
Attorney General’s motion to dismiss. We
emphasize, however, that our decision
does not foreclose Douglas of the
opportunity to seek judicial review of the
substantive arguments contained in his
petition for review through a petition for
habeas corpus filed in an appropriate
district court pursuant to 28 U.S.C. § 2241.
See Nugent, 367 F.3d at 166-67. In light
of our decision, we will vacate the stay of
removal that we entered as an expediency
so that we could consider the jurisdictional
issue raised by the Attorney General.
Conclusion
For the foregoing reason, we will
grant the Attorney General’s motion to
dismiss for lack of jurisdiction and dismiss
Douglas’ petition for review.

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