On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. 046-018-938) Immigration Judge: Hon. Walter A. Durling
The opinion of the court was delivered by: Fuentes, Circuit Judge.
Submitted Pursuant to Third Circuit LAR 34.1(a) May 24, 2011
Before: FUENTES, FISHER, and NYGAARD, Circuit Judges
Carlen Higgs is the subject of a final order of removal from the United States issued by an Immigration Judge. Higgs filed a notice of appeal with the Board of Immigration Appeals ("BIA" or "Board") incorrectly identifying the appeal as one from an interlocutory ruling, rather than from a final order of removal. As a result, the Board dismissed Higgs‟s appeal as moot. Higgs filed the instant petition for review, challenging the Board‟s dismissal of his notice of appeal, the merits of the IJ‟s decision, and the enforceability of the order of removal.
For the reasons below, we conclude the Board‟s order is a "final order" within the meaning of 8 U.S.C. § 1252(a)(1) and that the Board erred by failing to liberally construe Higgs‟s petition for review. We will therefore grant Higgs‟s petition for review and remand to the BIA for further proceedings.
Carlen Higgs was born in the Bahamas in 1981 and in 1999 was lawfully admitted into the United States as a permanent resident. In 2005, Higgs was charged with possession of and intent to deliver marijuana, in violation of Pennsylvania law 35 Pa. Con. Stat. § 780-113(a)(30), and knowing and intentional possession of a controlled substance, in violation of 35 Pa. Con. Stat. § 780-113(a)(16). Three years later, the Government sought to remove Higgs under two provisions of the Immigration and Naturalization Act ("INA"). Under the INA, the Government "has the burden of establishing by clear and convincing evidence that . . . the alien is deportable." 8 U.S.C. § 1229a(c)(3)(A). The Government also sought removal pursuant to INA § 237(a)(2)(B)(i) which states:
Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State [or] the United States . . . relating to a controlled substance (as defined in section 802 of Title 21), other than a single offense involving possession for one‟s own use of 30 grams or less of marijuana, is deportable.
8 U.S.C. § 1227(a)(2)(B)(i). In addition, the Government also invoked INA § 237(a)(2)(A)(iii), which authorizes removal of "[a]ny alien . . . convicted of an aggravated felony." 8 U.S.C. § 1227(a)(2)(A)(iii).
Represented by counsel, Higgs contested his removal on the ground that his prior convictions did not satisfy either provision. The Immigration Judge ("IJ") agreed, finding that Higgs sustained only a conviction for possession of marijuana and thus was not removable under INA § 237(a)(2)(A)(iii). After examining the state trial testimony, the IJ also found that Higgs was not removable under subsection (B)(i) because he possessed less than 30 grams of marijuana. On November 13, 2008, the IJ issued an order terminating the removal proceedings against Higgs.
The Government moved for reconsideration, and on November 24, 2008 the
IJ granted the motion. In so ruling, the IJ explained that he had
misunderstood the arresting officer‟s trial testimony, and that in
fact, he testified that Higgs was arrested "with 38 bags of marijuana
containing between .83 grams and 2 grams." A.R. 114.*fn1
Therefore, Higgs was removable under INA § 237(a)(2)(B)(i).
Higgs then moved for reconsideration, arguing that the trial testimony
was "vague and confusing" and did not "establish the exact amount of
marijuana." A.R. at 79.
On February 4, 2009, the IJ issued a third order, described as an "interlocutory ruling," noting the uncertainty regarding the weight of ...