Oscar Alvarado v. Eric Holder, Jr.


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: A073-966-058 Copies to all parties and the district court/agency. [998450208] [10-1002]

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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 Doc. 0 Case: 10-1002 Document: 38 Date Filed: 10/21/2010 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-1002 OSCAR SIFREDO ALVARADO, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent.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 Petition denied by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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

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