Germain Ndongo v. Eric Holder, Jr.

Filing 920091027

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-1401

GERMAIN DIDIER NDONGO, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Submitted:

October 7, 2009

Decided:

October 27, 2009

Before NIEMEYER, MOTZ, and AGEE, Circuit Judges.

Petition dismissed in part and denied in part by unpublished per curiam opinion.

Germain Didier Ndongo, Petitioner Pro Se. Carol Federighi, Senior Litigation Counsel, Rebecca Ariel Hoffberg, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Germain Cameroon, Didier for Ndongo, review of a an native order his and of citizen the Board from of of the

petitions Appeals

Immigration

("Board")

dismissing

appeal

immigration judge's denial of his motion to reopen.

For the

reasons discussed below, we dismiss in part and deny in part the petition for review. Pursuant to 8 U.S.C. § 1252(a)(2)(C) (2006), we lack jurisdiction, except as provided in 8 U.S.C. § 1252(a)(2)(D) (2006), to review the final order of removal of an alien

convicted of certain enumerated crimes, including an aggravated felony. Because Ndongo was found removable for having been

convicted of an aggravated felony, under § 1252(a)(2)(C), we have jurisdiction "to review factual determinations that trigger the jurisdiction-stripping provision, such as whether [Ndongo] [i]s an alien and whether []he has been convicted of an

aggravated felony." (4th Cir. 2002).

Ramtulla v. Ashcroft, 301 F.3d 202, 203 Once we confirm these two factual

determinations, then, under 8 U.S.C. § 1252(a)(2)(C), (D), we can only consider "constitutional claims or questions of law." See Mbea v. Gonzales, 482 F.3d 276, 278 n.1 (4th Cir. 2007). Based on our review of the record, we find that

Ndongo's conviction under Virginia law for assault and battery amounted to a "crime of violence" 2 and was therefore an

aggravated felony.

See 8 U.S.C. § 1101(a)(43)(F) (2006); 18 Accordingly, Ndongo is indeed an alien of an aggravated felony, and

U.S.C. § 16(a) (2006). who has been

convicted

§ 1252(a)(2)(C) divests us of jurisdiction over the petition for review absent a colorable constitutional claim or question of law. To the extent that Ndongo argues that the immigration court did not provide him with proper notice of his hearing in violation of his due process rights, see Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. se 1978) (stating we that find the that court the

liberally

construes

pro

pleadings),

immigration judge properly complied with the notice requirements set forth in 8 U.S.C. § 1229(a) (2006) by sending a hearing notice to the last known address provided by Ndongo. We

therefore find that the immigration judge properly declined to rescind the in absentia removal order and reopen Ndongo's

proceedings on this ground. Finally, Ndongo claims that he served in the United States
*

Army *

and

has

lost

his

Cameroonian

citizenship

as

a

Ndongo implies that he is entitled to some sort of legal status in the United States based on his alleged military service. Ndongo, however, cannot meet the good moral character requirement for naturalization in light of his status as an aggravated felon. See 8 U.S.C. §§ 1427(a), (e), 1440 (2006); O'Sullivan v. U.S. Citizenship & Immigration Servs., 453 F.3d 809, 812-16 (7th Cir. 2006).

3

result.

To the extent that this claim can be considered a

question of law, we find that Ndongo is not entitled to relief. This argument has no bearing on whether Ndongo is entitled to reopening or whether he is removable from the United States. Instead, Cameroon requested Ndongo as the raises country his a challenge of to the designation that to of he the

removal--a hearing.

designation Additionally,

during

removal

extent that Ndongo's military service prevents his removal to Cameroon, the Attorney General is authorized to select an

alternative country pursuant to 8 U.S.C. § 1231(b)(2) (2006). Accordingly, we dismiss in part and deny in part the petition for review. facts and legal before We dispense with oral argument because the are and adequately argument presented not in aid the the

contentions the court

materials

would

decisional process. PETITION DISMISSED IN PART AND DENIED IN PART

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