Ronald Flores Centeno v. Eric Holder, Jr.

Filing

09-60559

Ronald Flores Centeno v. Eric Holder, Jr.

Doc. 0

Case: 09-60223

Document: 00511207708

Page: 1

Date Filed: 08/18/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-60223 c /w No. 09-60559 S u m m a r y Calendar August 18, 2010 Lyle W. Cayce Clerk

R O N A L D MAURICIO FLORES CENTENO, P e titio n e r v. E R I C H. HOLDER, JR., U.S. ATTORNEY GENERAL, R espon dent

P e t it io n s for Review of an Order of the B o a r d of Immigration Appeals B I A No. A73 754 961

B e fo r e WIENER, PRADO and OWEN, Circuit Judges. PER CURIAM:* R o n a ld Mauricio Flores Centeno (Flores) has timely petitioned for review o f the Board of Immigration Appeals's (BIA's) decisions affirming the order of the im m ig r a t io n judge (IJ) denying Flores's application for withholding of d e p o r t a t io n and denying Flores's request to reopen the deportation proceedings a n d two requests for reconsideration. A native and citizen of Nicaragua, Flores e n te r e d the United States without inspection, and deportation proceedings were

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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in it ia te d against him on April 10, 1995, by issuance of an order to show cause. Additional charges of inadmissibility/deportability were lodged on November 21, 2 0 0 7 , because Flores was convicted twice in Arkansas of possession of a c o n t r o lle d substance and of shoplifting and third degree battery. At a hearing before the IJ, Flores admitted the fact of his prior convictions. Flores also a d m it t e d that he had been convicted, after entry, of two crimes involving moral t u r p it u d e not arising out of a single scheme or criminal misconduct, and that he h a d been convicted, after entry, of a controlled substance offense. The IJ

d e t e r m in e d that the two misdemeanor drug possession convictions qualified as a n aggravated felony. Flores applied for asylum, withholding of deportation under Immigration a n d Nationality Act (INA) § 241(b)(3), and withholding of removal under the C o n v e n t io n Against Torture (CAT). The IJ determined that Flores was not e lig ib le for asylum because of his aggravated felony conviction, and that he was n o t entitled to withholding of deportation or relief under the CAT because he had n o t carried his burden with respect to the likelihood of future persecution. The B I A affirmed IJ's decision, and it denied Flores's requests for reconsideration, t o reopen deportation proceedings, and for reconsideration of the decision d e n y in g the request to reopen. Flores concedes that he is deportable under former Immigration and N a tio n a lit y Act (INA) § 241(a)(1)(B) because he entered the United States w it h o u t inspection, and that he is ineligible for asylum. Flores contends

n e v e r t h e l e s s that he is not deportable under former INA § 241(a)(2)(A)(ii) and (iii) on the basis of his status as an alien who was convicted following entry of t w o crimes involving moral turpitude and as an aggravated felon. This court has jurisdiction to review constitutional claims and questions o f law raised upon a petition for review. See Brieva-Perez v. Gonzales, 482 F.3d 3 5 6 , 359 (5th Cir. 2007); see also 8 U.S.C. § 1252(a)(2)(D). We review questions 2

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o f law de novo but defer "to the BIA's interpretation of immigration statutes u n le s s the record reveals compelling evidence that the BIA's interpretation is in c o r r e c t ."1 Cantu-Delgadillo v. Holder, 584 F.3d 682, 686 (5th Cir. 2009)

(q u o ta t io n marks omitted). Flores has not exhausted his administrative remedies as to the question w h e t h e r he was deportable under former INA § 241(a)(2)(A)(ii), as an alien who, a ft e r entry, was convicted of two crimes involving moral turpitude. See § 1252(d) (" A court may review a final order of removal only if--(1) the alien has exhausted a ll administrative remedies available to the alien as of right."). Therefore, this c o u r t does not have jurisdiction to consider the issue. See Toledo-Hernandez v. M u k a s e y , 521 F.3d 332, 335-36 (5th Cir. 2008). In any event, Flores's arguments w it h regard to that ground of deportability and the other grounds of d e p o r t a b ilit y are without merit. F lo r e s contends that he is not deportable under former INA

§ 241(a)(2)(A)(ii) and (iii) on the basis of his status as an alien who was convicted fo llo w in g entry of two crimes involving moral turpitude and as an aggravated fe lo n because his convictions did not occur "after entry" or "after admission." Flores contends that he should have been charged in removal proceedings under I N A § 237, and that he could not be removed under § 237 because he was never " a d m it t e d " to the United States. Flores's arguments conflate the concepts of "entry" and "admission." The t e r m "entry" was formerly defined as "`any coming of an alien into the United S t a te s , from a foreign port or place or from an outlying possession, whether v o lu n t a r ily or otherwise.'" Landon v. Plasencia, 459 U.S. 21, 25 n.3 (1982)

We note that Flores does not challenge the BIA's determination that he is deportable as an aggravated felon. But see Carachuri-Rosendo v. Holder, ___ S. Ct. ___, 2010 WL 2346552 at *11 (June 14, 2010). Although Flores is pro se, we will not raise the issue sua sponte. See Garcia v. Reno, 234 F.3d 257, 258 n.2 (5th Cir. 2000); Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995).

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(q u o tin g former 8 U.S.C. § 1101(a)(13)). "The terms `admission' and `admitted' m e a n , with respect to an alien, the lawful entry of the alien into the United S t a te s after inspection and authorization by an immigration officer." 8 U.S.C. § 1101(a)(13)(A); see also In re Rosas-Ramirez, 22 I&N Dec. 616, 620 (BIA 1999);2 see generally 1 CHARLES GORDON, STANLEY MAILMAN, AND STEPHEN YALE-LOEHR, I MMIGRATION LAW AND PROCEDURE, § 1.03[1][b] (Matthew-Bender, Rev. Ed., t h r o u g h June 2010) (discussing distinction between "entry" and "admission"). Under former INA § 241(a)(2)(A)(ii) & (iii) and (B)(i), aliens were "deportable" u p o n commission following "entry" of two or more crimes of moral turpitude, of a n aggravated felony, and of a controlled substance offense, respectively. Under I N A § 237(a)(2)(A) & (B), an alien is "removable" upon the commission of such c r im e s following "admission." See 8 U.S.C. § 1227(a)(2). Under § 301(c)(1)(B) of the Illegal Immigration Reform and Immigrant R e s p o n s ib ilit y Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (1996) (IIRIRA), d e p o r t a t io n proceedings that were pending on the IIRIRA enactment date were c o n t in u e d . IIRIRA § 301(c)(1)(B). Under IIRIRA § 309(c)(3), the Attorney

G e n e r a l could elect to terminate deportation cases pending on the IIRIRA e n a c t m e n t date and to reinstate such cases as removal proceedings, a procedure k n o w n as "repapering." Rojas-Reyes v. INS, 235 F.3d 115, 125-26 (2d Cir. 2000). In this case, the Attorney General exercised his discretion to continue the d e p o r t a t io n proceedings.3 Flores has not shown that the Attorney General

c o m m it t e d an error of law in exercising his discretion to continue the deportation

In Rosas-Ramirez, 22 I&N Dec. at 617, cited by Flores, the BIA held that the alien's adjustment of status to lawful permanent resident, under INA § 245A(b), constituted an "admission" under § 237(a)(2)(A)(iii). 22 I&N Dec. at 623. Because Flores's status was never adjusted to lawful permanent resident, Rosas-Ramirez is inapposite. The Attorney General points out that, if he had exercised his discretion to reinstate removal proceedings against Flores, the charges would have been brought under INA § 212(a), which pertains to inadmissible aliens, and not under INA § 237. See 8 U.S.C. § 1182(a)(2).
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p r o c e e d in g s under the charges asserted in the order to show cause, or that his c o n s t it u t io n a l rights were violated. See Rojas-Reyes, 235 F.3d at 125-26. F lo r e s admitted in 1995 that he was deportable under former INA § 241(a)(1)(B) because he entered the United States without inspection. In 2008, F lo r e s admitted that he was convicted, after entry, of two crimes involving moral t u r p it u d e not arising out of a single scheme or criminal misconduct, and that he h a d been convicted, after entry, of a controlled substance offense. Flores has not s h o w n that the BIA committed an error of law in determining that he was d e p o r t a b le under former INA § 241(a)(1)(A)(ii) & (iii) and (B)(i) because he was c o n v ic t e d after entry of two crimes of moral turpitude, an aggravated felony, and a controlled substance offense. Flores argues that his attorney rendered ineffective assistance in c o n c e d in g that he was admitted to the United States. This issue was first a s s e r t e d in Flores's request to reopen. The BIA's denial of a request to reopen is reviewed "under a highly deferential abuse of discretion standard." Manzano-Garcia v. Gonzales, 413 F.3d 462, 469 (5th Cir. 2005). Ordinarily, a r e q u e s t to reopen must be filed within 90 days of entry of "the final a d m in is t r a t iv e decision was rendered in the proceeding sought to be reopened." 8 C.F.R. § 1003.2(c)(2); see also 8 U.S.C. § 1229a(c)(7)(C)(i). Flores raises no is s u e with respect to the BIA's conclusion that his request to reopen was u n t im e ly . Accordingly, this court lacks jurisdiction over his petition for review o f the order denying the request to reopen. See Enriquez-Alvarado v. Ashcroft, 3 7 1 F.3d 246, 248-50 (5th Cir. 2004). Moreover, because Flores's ineffective a s s is t a n c e arguments are based on his meritless contention that he did not c o m m it his various criminal offenses after entry, he has not shown that the p r o c e e d in g s were fundamentally unfair because he received ineffective a s s is t a n c e of counsel. See Mai v. Gonzales, 473 F.3d 162, 165 (5th Cir. 2006).

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F lo r e s argues that he is eligible for adjustment of status under 8 U.S.C. § 1255(i) because he has been physically present in the United States since 1995, a n d because he "petitioned for classification and labor certification" prior to April 3 0 , 2001. This issue is unexhausted. See Toledo-Hernandez, 521 F.3d at 335-36. T h e petitions for review are DENIED.

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