Kevin Marsh v. Attorney General United States

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 21-2409 ___________ KEVIN ANTHONY MARSH, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA ____________________________________ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A060-010-154) Immigration Judge: Pallavi Shirole ____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a) January 5, 2023 Before: HARDIMAN, PORTER, and FREEMAN, Circuit Judges (Opinion filed: February 14, 2023) ___________ OPINION* ___________ * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PER CURIAM Kevin Marsh petitions for review of his final order of removal. We stayed his petition pending his pursuit of a motion for reconsideration before the Board of Immigration Appeals (“BIA”). The Government has filed a motion to lift the stay because the BIA has since denied reconsideration. We grant that motion and will dismiss in part and deny in remaining part Marsh’s petition for review. I. Marsh is a citizen of Jamaica who was admitted to the United States as a lawful permanent resident in 2008. In 2019, he was convicted of possessing with the intent to distribute between five and 25 pounds of marijuana in violation of N.J. Stat. Ann. §§ 2C:35-5(a)(1) and 2C:35-5(b)(10)(b). The Government charged him as removable on the grounds that his conviction (1) was for an offense “relating to” a controlled substance, see 8 U.S.C. § 1227(a)(2)(B)(i), and (2) was an “illicit trafficking” aggravated felony, see 8 U.S.C. §§ 1101(a)(43)(B), 1227(a)(2)(A)(iii). Marsh, through counsel, conceded the conviction but denied the charges and filed a motion to terminate his proceeding on the ground that his conviction does not render him removable. He did not apply for any other relief from removal. An Immigration Judge (“IJ”) denied Marsh’s motion and ordered his removal to Jamaica. Marsh appealed through counsel to the BIA, which affirmed. Marsh filed a petition for review of that ruling. He also filed a motion for reconsideration with the BIA in which he raised a new 2 legal argument. The BIA denied his motion for reconsideration on August 24, 2022, but Marsh has not filed a petition for review of that ruling. II. Marsh asks us to decide the issue that he raised before the BIA in his motion for reconsideration and that the BIA later rejected. In that motion, Marsh argued for the first time that his notice to appear did not include the time and date of his hearing as required by 8 U.S.C. § 1229(a)(1)(G)(i). He further argued that the BIA should terminate his proceeding for that reason because this defect either deprived the IJ of jurisdiction or violated claims-processing rules. The Government argues that we should dismiss Marsh’s petition for review to this extent. We agree. If this issue were truly jurisdictional, then we might have been obliged to decide it before reaching the merits. See Perez-Sanchez v. Att’y Gen., 935 F.3d 1148, 1153 (11th Cir. 2019). But as we have since clarified, § …

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