Rogelio Figuereo-Sanchez v. Atty Gen USA

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MANDATE ISSUED, filed.

Rogelio Figuereo-Sanchez v. Atty Gen USA

Doc. 0 Att. 1

Case: 09-2137

Document: 003110220132

Page: 1

Date Filed: 07/19/2010

NOT PRECEDENTIAL U N IT E D STATES COURT OF APPEALS F O R THE THIRD CIRCUIT

No. 09-2137

ROGELIO FIGUEREO-SANCHEZ, Petitioner v. A T T O R N E Y GENERAL OF THE UNITED STATES, Respondent

On Petition for Review of an Order of the B o a rd of Immigration Appeals (A g e n c y No. A030-851-202) Im m ig ra tio n Judge: Jeffrey L. Romig

Submitted Under Third Circuit LAR 34.1(a) M a y 27, 2010 B e f o re : BARRY, AMBRO and COWEN, Circuit Judges (O p in io n filed: May 28, 2010)

OPINION

PER CURIAM R o g e lio Figuereo-Sanchez petitions for review of a final order of the Board of Im m igratio n Appeals ("BIA") dismissing his appeal from the Immigration Judge's

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Date Filed: 07/19/2010

(" IJ 's " ) decision ordering his removal. We will deny the petition for review. I. F ig u e re o -S a n c h e z, a native and citizen of the Dominican Republic, entered the U n ite d States in 1972 as a young child. More than thirty years later, in 2003, he pleaded g u ilty in federal court to conspiracy to possess with intent to distribute cocaine and was s e n te n c ed to ninety-six months of imprisonment. The government then sought to have h im removed on the basis of that conviction.1 F ig u e re o -S a n c h e z chose to represent himself at the hearing and did not apply for a n y form of relief. He admitted to the allegations and essentially conceded removability. After ordering Figuereo-Sanchez's removal to the Dominican Republic, the IJ advised h im that he had the right to appeal to the BIA. The IJ then stated: "You can also accept th e order of deportation as final. So, the question to you is do you want to file an appeal o r do you accept a deportation order as a final one?" Administrative Record ("AR") at 4 5 . Figuereo-Sanchez replied "I want to accept it as final." Id. Nonetheless, about two m o n th s after the hearing, Figuereo-Sanchez wrote to the "Immigration Court," stating th a t he had not waived his right to appeal and seeking his "appeal paper." AR at 33. He f ile d an appeal a few months later, claiming that the statutory provisions mandating the

The government charged Figuereo-Sanchez as removable on three grounds: (1) for b e in g convicted of an aggravated felony, (2) for being convicted of conspiracy to commit a n aggravated felony, and (3) for being convicted of violating a law related to a controlled su b stan ce . See 8 U.S.C. § 1227(a)(2)(A)(iii); (a)(2)(B)(i). 2

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re m o v a l of aliens who are convicted of certain crimes are unconstitutional because they c o n tain no exception for an individual like him, who became completely immersed in A m e ric a n culture as a ward of the state in his youth and who has no connection to his h o m e country. T h e BIA dismissed the appeal for lack of jurisdiction after concluding that F ig u e re o -S a n c h e z had knowingly and intelligently waived his right to appeal. See 8 C .F .R . § 1003.3(a) (a "notice of appeal may not be filed by any party who has waived a p p e al pursuant to § 1003.39"). The BIA also ruled in the alternative that, if it had ju ris d ic tio n , it would dismiss the appeal on the merits because Figuereo-Sanchez had not raised any issues that the BIA had jurisdiction to decide and had not identified any form o f relief for which he is eligible. Figuereo-Sanchez then filed this petition for review. II. W e lack jurisdiction to review "any final order of removal against an alien who is re m o v a b le by reason of having committed" certain criminal offenses, including an a g g ra v a te d felony and a controlled substance violation. 8 U.S.C. § 1252(a)(2)(C). However, the REAL ID Act of 2005 restored direct review of constitutional claims and q u e s tio n s of law presented by criminal aliens in petitions for review. 8 U.S.C. § 1252(a)(2)(D); Papageorgiou v. Gonzales, 413 F.3d 356, 358 (3d Cir. 2005). Because F ig u e re o -S a n c h e z has been convicted of an aggravated felony and a controlled substance v io la tio n , we may consider only constitutional issues, pure questions of law, and issues of 3

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th e application of law to uncontested facts. See Kamara v. Att'y Gen., 420 F.3d 202, 211 (3 d Cir. 2005). We review constitutional issues and questions of law de novo. Id. The government asserts that "Figuereo-Sanchez does not raise any constitutional iss u e s or legal questions in his opening brief" and that we must therefore dismiss his p e titio n for review for lack of jurisdiction. Respondent's Brief at 12. But FiguereoS a n c h e z asks this Court to "conduct a constitutional inquiry" into the statutes governing h is removal, arguing that "the statutes are impermissibly unconstitutional when they ren d er any alien removable without consideration of cases such as the instant one, where th e petitioner was a ward of the state f[ro]m minor age into adulthood." Petitioner's Brief a t 4-5. He also argues that deportation "would result in double punishment" for his c rim e . Id. at 4. P lea d in g s from pro se litigants, such as Figuereo-Sanchez, must be liberally c o n stru e d . See, e.g., Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). Although h is brief is not artfully drafted, it is plain that Figuereo-Sanchez is attempting to present a c o n stitu tio n a l claim regarding his order of removal. To the extent that he is claiming that h is right to equal protection has been violated because the statute governing his removal d o e s not recognize an exception for individuals in his circumstances, his claim is without m e rit. To prove an equal protection violation, one must first demonstrate "disparate tre a tm e n t of different groups." DeSousa v. Reno, 190 F.3d 175, 184 (3d Cir. 1999). Figuereo-Sanchez has not identified any groups being treated differently under the statute. 4

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O n the contrary, his argument is that the uniform treatment of criminal aliens under the s ta tu te is unconstitutional insofar as individuals with histories like his own should be e x c e p te d from deportation. Accordingly, we perceive no violation of equal protection. To the extent that Figuereo-Sanchez is claiming a violation of double jeopardy by arguing th a t he is being punished twice for his criminal offense, his claim lacks merit because a d e p o rta tio n proceeding is a purely civil action and the "purpose of deportation is not to p u n ish past transgressions." See INS v. Lopez-Mendoza, 468 U.S. 1032, 1038-39 (1984). F ig u e re o -S a n c h e z also claims that he did not knowingly waive his right to appeal f ro m the IJ's decision. Under the circumstances, we need not decide whether that p re se n ts a question of law; there is no meaningful relief available to Figuereo-Sanchez even if his waiver were invalid. If we were to determine that the BIA erred in holding th a t the waiver was knowing and intelligent, the relief we would order would be a remand to the BIA to consider the appeal. But Figuereo-Sanchez did not apply for any form of re lief during his immigration proceedings and, as the BIA correctly noted in its alternate h o ld in g on the merits, he did not establish his eligibility for any relief. A c c o rd in g ly, we will deny the petition for review.

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