Moreno v. Gonzales , 206 F. App'x 815 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
December 1, 2006
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
A RM A ND O MA Y A MO R EN O ,
Petitioner,
v. No. 06-9520
(No. A74-563-028)
ALBERTO R. GONZA LES, (Petition for Review)
Attorney General,
Respondent.
OR D ER AND JUDGM ENT *
Before O ’B RIE N and BROR BY, Circuit Judges, and BRO W N, ** District Judge.
Following a decision by the Bureau of Immigration Appeals (BIA) deeming
his appeal of a removal order withdrawn by his departure from the U nited States,
petitioner sought review of the removal order in this court. The Attorney General
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
**
The H onorable W esley E. Brown, Senior District Judge, District of K ansas,
sitting by designation.
raises several interrelated procedural and jurisdictional objections to the petition
for review. W e agree that we lack jurisdiction and dismiss the petition.
PR OC EDURAL BACKGROUND
A firm grasp of the relevant procedural facts is essential. On June 9, 2005,
petitioner, a lawful permanent resident, was ordered removed by an Immigration
Judge (IJ) under 8 U.S.C. § 1227(a)(2)(A)(iii) (providing for removal of alien
convicted of aggravated felony). Admin. R. at 133, 136. Petitioner’s initial
attempt to appeal was ineffectual. On July 13, 2005, the BIA sent a letter to
petitioner’s counsel informing him that his appeal had been rejected because the
notice of appeal had not been signed and the filing fee (or request for waiver of
the fee) had not been included. Id. at 79-80; see 8 C.F.R. § 1003.3(a)(1) (“An
appeal is not properly filed unless it is received at the [BIA], along with all
required documents, fees or fee waiver requests . . . within the [thirty days]
specified in [8 C.F.R. § 1003.38(b)].”). A second notice of appeal was submitted
on July 20, 2005, by petitioner’s counsel, who asked the BIA to accept the appeal
by certification. Admin. R. at 77-78; see M ahamat v. Gonzales, 430 F.3d 1281,
1284 (10th Cir. 2005) (explaining discretionary certification procedure for late
appeals, and noting BIA ’s ruling thereon is not subject to judicial review).
In the meantime, however, the government had executed the IJ’s order and
removed petitioner to M exico. As the deadline for appeal to the BIA (July 11,
2005) had passed and petitioner had not perfected an appeal, the government did
-2-
not violate the automatic stay of removal applicable “during the time allowed for
the filing of an appeal” or “while an appeal is pending.” 8 C.F.R. § 1003.6(a).
The BIA evidently was not informed of the removal.
On August 16, 2005, the BIA issued an order that acknowledged petitioner
had not filed a timely appeal and denied his request for an appeal by certification.
Admin. R. at 75. That order reflected the BIA’s understanding that petitioner had
not only filed his second notice of appeal beyond the July 11, 2005 deadline but
had filed his initial, ineffective notice late as well. Under the circumstances, the
BIA “d[id] not find . . . adequate reason to accept this appeal by certification” and
dismissed the matter. Id. Shortly thereafter, petitioner submitted certified-mail
documentation confirming that his initial notice of appeal had in fact reached the
BIA on time, and asked the BIA to reconsider its dismissal order. Id. at 68-72.
The BIA granted the motion and reinstated petitioner’s appeal. Id. at 55.
The government promptly sought reconsideration of the BIA’s decision,
arguing that petitioner’s removal in July 2005, which had not been brought to the
BIA’s attention, categorically precluded both his motion for reconsideration,
pursuant to 8 C.F.R. § 1003.2(d) (providing that motion for reconsideration
cannot be made after departure of alien), and, more fundamentally, his continued
pursuit of an appeal, pursuant to 8 C.F.R. § 1003.4 (providing that appeal is
deemed withdrawn if alien departs prior to disposition). Admin. R. at 32-35. The
BIA agreed that petitioner’s departure resulted in the withdrawal of his appeal,
-3-
and held that “the initial decision of the Immigration Judge is accordingly final to
the same extent as though no appeal had been taken.” Id. at 2. Petitioner then
filed the instant petition for review.
JURISDICTION AL DEFICIENCIES
A. Failure to Exhaust due to W ithdraw n BIA Appeal
“Neglecting to take an appeal to the BIA constitutes a failure to exhaust
administrative remedies as to any issue that could have been raised, negating the
jurisdiction necessary for subsequent judicial review.” Soberanes v. Com fort,
388 F.3d 1305, 1308-09 (10th Cir. 2004); see 8 U.S.C. § 1252(d)(1). The
government argues that the withdrawal of petitioner’s appeal to the BIA under
§ 1003.4 left his administrative remedies unexhausted and, consequently, deprived
this court of jurisdiction over his petition for review. W e agree, though the
analysis is a bit more complicated than this summary argument suggests.
Because an alien appealing a removal order is protected from execution of
the order by the automatic stay in § 1003.6(a) noted above, cases holding appeals
withdrawn under § 1003.4 typically involve instances where aliens voluntarily left
the country. See, e.g., Aguilera-Ruiz v. Ashcroft, 348 F.3d 835, 836 (9th Cir.
2003); M ejia-Ruiz v. INS, 51 F.3d 358, 359 (2d Cir. 1995); Aleman-Fiero v. INS,
481 F.2d 601, 602 (5th Cir. 1973). Nothing in the language of § 1003.4 restricts
its operation to such departures, however, as the Fifth Circuit recently explained
in upholding a BIA decision applying the rule to an alien whose departure from
-4-
the country had not been voluntary. See Long v. Gonzales, 420 F.3d 516, 518-20
(5th Cir. 2005) (refusing to read voluntary departure fortuitously present in cases
cited above as necessary condition for application of § 1003.4, which would have
engrafted onto the rule “an [involuntary-departure] exception that it neither
expressly nor implicitly provides”). In light of the deference we owe the BIA’s
construction of its own regulation, see id. at 519, we agree with the Fifth Circuit
that the mere fact that the alien’s departure may be characterized as involuntary
does not preclude application of § 1003.4.
That said, an involuntary departure by removal raises a potential
complication not present in Long (where the government was not responsible for
the alien’s involuntary departure): if an alien were removed in violation of the
automatic stay in § 1003.6(a), would it still be proper to apply § 1003.4 literally
and deem the alien’s appeal withdrawn, affording the government the benefit of
one regulation based on its violation of another? W e do not have to resolve this
question here, however, as the government did not violate § 1003.6(a) when it
removed petitioner. The automatic stay continues beyond the time for filing an
appeal only when an appeal is in fact perfected. W hile, as the BIA eventually
recognized, petitioner’s initial attempt to appeal was not untimely, it was fatally
deficient and without effect, i.e., “as though no appeal had been taken.” 8 C.F.R.
§ 1003.38(d). Thus, when petitioner was removed on July 19, 2005, the
conditions necessary to trigger the stay under § 1003.6(a) w ere not present.
-5-
Accordingly, the BIA deemed petitioner’s appeal withdrawn through the
proper operation of § 1003.4. As a result, his present challenge to the underlying
removal order has not been exhausted and his petition for review of that order
does not properly invoke our jurisdiction. W e recognize that this conclusion rests
on various regulatory provisions whose interaction and application have not been
thoroughly developed in the particular removal context presented here. Thus, we
shall also address the government’s other jurisdictional objection, which provides
a second, alternative rationale for dismissal of the petition.
B. Jurisdictional Bar to Review of O rder Removing C riminal Alien
The government argues that even if exhaustion principles did not bar our
review of the removal order in this case, we would still lack jurisdiction under
8 U.S.C. § 1252(a)(2) to review the order because of its subject matter. Under
§ 1252(a)(2)(C), “no court shall have jurisdiction to review any final order of
removal against an alien who is removable by reason of having comm itted a
criminal offense” of the sort for which petitioner was convicted. This prohibition
is now qualified by § 1252(a)(2)(D ), however, which provides that “[n]othing in
[§ 1252(a)(2)(C)] which limits or eliminates judicial review shall be construed as
precluding review of constitutional claims or questions of law raised upon a
petition for review filed with an appropriate court of appeals.” As explained in
Vargas v. Departm ent of Homeland Security, 451 F.3d 1105, 1107 (10th Cir.
2006), the combined effect of these interactive provisions grants us jurisdiction
-6-
over orders removing criminal aliens but only insofar as the petition for review
raises constitutional or legal challenges to the removal order.
W e must, therefore, look to the petition for review filed by petitioner to
determine whether it raises any objection that qualifies as a constitutional or legal
challenge to the removal order. Looking solely at the conclusion of the petition,
it might appear that it does: “The Tenth Circuit Court should declare the removal
order unconstitutional, and remand the case to the [BIA] for further action on the
case.” Aplt. Opening Br. at 8. The specific grounds asserted in support of that
conclusion, however, do not bring the matter w ithin our jurisdiction.
The substance of petitioner’s position is that his conviction should be
vacated on the grounds that he pled guilty without proper legal advisement (in
particular, with respect to immigration consequences) to an offense that he had
not actually committed. See id. at 7-8. But, as we have recognized on several
occasions, “[a] ‘petitioner cannot collaterally attack the legitimacy of his state
criminal convictions in the deportation proceedings.’” 1 Vargas, 451 F.3d at 1107(quoting Trench v. INS, 783 F.2d 181, 183 (10th Cir. 1986)); Abiodun v.
1
A petitioner can, of course, show that his conviction has already been
vacated, which if done on the merits rather than for rehabilitation or alleviation of
hardship, can be the basis for a successful challenge to removal. See Cruz-Garza
v. Ashcroft, 396 F.3d 1125, 1128-29 (10th Cir. 2005). Indeed, petitioner’s
conviction has been vacated, but, as he concedes, not “for the reasons necessary
to provide the relief requested by [him],” i.e., not on the merits of his challenges
to his plea. Aplt. Opening Br., Attached Statement at 2-3. Rather, the conviction
was dismissed on rehabilitation grounds, because he had “successfully completed
the terms of [his] deferred judgment and sentence.” Admin. R. at 22.
-7-
Gonzales, 461 F.3d 1210, 1217 (10th Cir. 2006) (same). Thus, “[w]hether the[]
contentions [raised in the petition] have merit or not, we cannot address them.
They are beyond the scope of these proceedings.” Vargas, 451 F.3d at 1107(emphasis added). Since the only constitutional/legal objections asserted in the
petition do not attack the removal order per se but, rather, raise collateral issues
that are, for established reasons, categorically beyond the scope of our review, w e
lack jurisdiction over the proceeding.
The petition for review is DISM ISSED.
Entered for the Court
W ade Brorby
Circuit Judge
-8-