Oscar Alvarado v. Eric Holder, Jr.
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: A073-966-058 Copies to all parties and the district court/agency. [998450208] [10-1002]
Oscar Alvarado v. Eric Holder, Jr.
Doc. 0
Case: 10-1002 Document: 38
Date Filed: 10/21/2010
Page: 1
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-1002 OSCAR SIFREDO ALVARADO, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Submitted: September 15, 2010 Decided: October 21, 2010
Before DUNCAN, DAVIS, and WYNN, Circuit Judges. Petition denied by unpublished per curiam opinion. Jaime W. Aparisi, Silver Spring, Maryland, for Petitioner. Tony West, Assistant Attorney General, Jamie M. Dowd, Senior Litigation Counsel, Andrew N. O'Malley, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Unpublished opinions are not binding precedent in this circuit.
Dockets.Justia.com
Case: 10-1002 Document: 38
Date Filed: 10/21/2010
Page: 2
PER CURIAM: Oscar Sifredo Alvarado, a native and citizen of El Salvador, petitions for review of a final administrative order of expedited removal issued by Immigration and Customs
Enforcement ("ICE").
For the reasons discussed below, we deny
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 who is removable crimes, found for having been convicted felonies. been of certain enumerated was
including
aggravated for having
Because of
Alvarado an
removable
convicted
aggravated
felony, under § 1252(a)(2)(C), we have jurisdiction "to review factual determinations that trigger the jurisdiction-stripping provision, such as whether [Alvarado] [i]s an alien and whether []he has been convicted of an aggravated felony." Ashcroft, 301 F.3d 202, 203 (4th Cir. 2002). these two factual (D), determinations, we can only then, consider Ramtulla v.
Once we confirm under 8 U.S.C.
§ 1252(a)(2)(C),
"constitutional
claims or questions of law." 276, 278 n.1 (4th Cir. 2007).
See Mbea v. Gonzales, 482 F.3d
Although Alvarado concedes that he is a native and citizen of El Salvador, he denies the allegation that he is removable as an aggravated felon. 2 Based on our review of the
Case: 10-1002 Document: 38
Date Filed: 10/21/2010
Page: 3
record, we find that Alvarado's conviction under Maryland law for sexual offense in the third degree amounted to "sexual abuse of a minor" and was therefore an aggravated felony. See 8
U.S.C. § 1101(a)(43)(A) (2006) (defining aggravated felony as including the murder, rape, or sexual abuse of a minor); United States v. Diaz-Ibarra, 522 F.3d 343, 348 (4th Cir. 2008)
(defining "sexual abuse of a minor"). *
Accordingly, Alvarado is
indeed an alien who has been convicted of an aggravated felony, and § 1252(a)(2)(C) divests us of jurisdiction over the petition for review absent a colorable constitutional claim or question of law. Alvarado raises two additional issues which arguably can be considered questions of law in his petition for review, namely, (1) whether ICE violated his right to counsel by failing to consider his response to the Notice of Intent to Issue a Final Administrative Order and failing to include this document in the administrative record; and (2) whether he was denied a bond hearing in violation of his due process rights. To succeed on a procedural due process claim, Alvarado must demonstrate "(1) that a defect in the proceeding rendered
We reject Alvarado's argument that his conviction was not final for immigration purposes. See 8 U.S.C. § 1101(a)(48)(A) (2006) (defining "conviction" as the "formal judgment of guilt of the alien entered by a court"). 3
*
Case: 10-1002 Document: 38
Date Filed: 10/21/2010
Page: 4
it fundamentally unfair and (2) that the defect prejudiced the outcome of the case." Anim v. Mukasey, 535 F.3d 243, 256 (4th
Cir. 2008); accord Rusu v. INS, 296 F.3d 316, 320-22 (4th Cir. 2002). We note that the Attorney General ascertained that
Alvarado's response was indeed a part of the record before the agency record. the and was inadvertently omitted from the administrative
Moreover, even assuming that ICE neglected to consider Alvarado cannot demonstrate the requisite
response,
prejudice as his claim that his conviction was not final for immigration purposes is clearly without merit. that Alvarado's contention that he was Finally, we find to a bond See
entitled
hearing is outside the scope of the petition for review.
Joseph v. Holder, 600 F.3d 1235 (9th Cir. 2010) (explaining that bond determination hearings and removal hearings are entirely separate proceedings). Accordingly, dispense with oral we deny the petition the for facts review. and We legal
argument
because
contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?