Fraser v. Gonzales

Filing 920060712

Opinion

United States Court of Appeals Fifth Circuit

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

F I L E D
July 12, 2006 Charles R. Fulbruge III Clerk

No. 05-60785 Summary Calendar JOHN COURTNEY FRASER, also known as Andrew Burrell, Petitioner, versus ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL, Respondent. -------------------Petition for Review of an Order of the Board of Immigration Appeals BIA No. A90 234 737 -------------------Before KING, WIENER, and DeMOSS, Circuit Judges. PER CURIAM:* John Courtney Fraser seeks review of the BIA order finding him removable. Finding no error, we deny the petition.

As a threshold matter, we have jurisdiction to review Fraser's constitutional claims and questions of law pursuant to the REAL ID Act. See 8 U.S.C. § 1252(a)(2)(D); Hernandez-

Castillo v. Moore, 436 F.3d 516, 518 (5th Cir. 2006), petition for cert. filed (Mar. 28, 2006) (No. 05-1251). We reject

Fraser's contention that he suffered any due process violation as a result of the conversion of his habeas petition to a petition Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
*

No. 05-60785 -2for review and its transfer to this court, as Fraser has failed to demonstrate how he has been prejudiced. We review the Immigration Judge's findings, adopted by the BIA, for substantial evidence, with great deference given to the IJ's credibility determinations. 903 (5th Cir. 2002). Efe v. Ashcroft, 293 F.3d 899,

Fraser contends that the IJ erred in

concluding that he was removable due to an aggravated felony conviction for possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(2). Fraser argues that his underlying state

convictions forming the basis of his § 922(g)(2) conviction were vacated, thereby invalidating his conviction. This contention is

without merit, as Fraser's conviction was upheld on both direct and collateral review. See Burrell v. United States, 384 F.3d Fraser cannot collaterally attack the

22, 24-25 (2d Cir. 2004).

validity of either his state or his federal convictions in an immigration proceeding. Cir. 1988). See Brown v. INS, 856 F.2d 728, 731 (5th

Further, Fraser's § 922(g)(2) conviction constitutes

an aggravated felony conviction for purposes of removal, and it did so at the time of Fraser's conviction. See 8 U.S.C. The

§ 1101(a)(43)(E)(ii) (1994); 8 U.S.C. § 1227(a)(2)(A)(iii).

IJ also properly denied asylum and cancellation of removal due to the aggravated felony. 8 U.S.C. § 1229b(a)(3). In addition, the IJ did not err in denying discretionary relief under § 212(c) of the former INA, because in 1990, the INA See 8 U.S.C. § 1158(b)(2)(A)(ii), (B)(i);

No. 05-60785 -3was amended to preclude such relief for aliens convicted of aggravated felonies who, like Fraser, had served more than five years in prison. See INS v. St. Cyr, 533 U.S. 289, 295 (2001).

Fraser's contention that the INS delayed in seeking removal prejudiced him because it eliminated the possibility of § 212(c) relief is likewise without merit, as an alien has no due process liberty interest in § 212(c) relief. See Nguyen v. District

Director, Bureau of ICE, 400 F.3d 255, 259 (5th Cir. 2005). The IJ also denied relief pursuant to the United Nations Convention Against Torture (CAT). Fraser's brief fails to Moreover, the IJ's

address the merits of his CAT claim.

conclusion was supported by substantial evidence as Fraser failed to adduce any evidence that he faced torture at the hands of government officials or persons acting with government acquiescence. See 8 C.F.R. § 1208.18(a)(1).

Fraser next complains that the BIA erroneously denied his motion for reconsideration as untimely, asserting that he should be given the benefit of the prison mailing rule applicable in other cases. This argument is without merit. See Smith v. Moreover, the

Conner, 250 F.3d 277, 279 & n.14 (5th Cir. 2001).

BIA concluded that it would deny the motion on the merits even it had been timely. Fraser also asserts that the IJ should have transferred venue to New York from Louisiana. Our review of the record

reveals no abuse of the IJ's broad discretion to determine

No. 05-60785 -4whether to grant a motion to transfer venue. F.3d 34, 39 (5th Cir. 1993). Finally, Fraser complains that he was denied access to counsel, to witnesses, and to the Jamaican consulate. However, See Chow v. INS, 12

the IJ repeatedly continued the proceedings to allow Fraser to seek counsel, obtain documents, and complete his CAT application. Fraser ultimately was unable to retain counsel or contact the consulate, although he did contact the High Commissioner for Refugees. Fraser has failed to show that the proceedings were See

fundamentally unfair such that he was denied due process.

Rosales v. Bureau of Immigration & Customs Enforcement, 426 F.3d 733, 736 (5th Cir. 2005). For the foregoing reasons, the petition for review is DENIED.