Veras-Martinez v. Holder ( 2015 )

14-428-ag
Veras-Martinez v. Holder
BIA
Straus, IJ
A045 382 600
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the
2 Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the 27th day
4 of March, two thousand fifteen.
5
6 PRESENT:
7 CHESTER J. STRAUB,
8 ROBERT D. SACK,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 HUASCAR CRISTIAN VERAS-MARTINEZ, AKA
14 HUASCAR VERAS,
15 Petitioner,
16
17 v. 14-428-ag
18
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: James A. Welcome, Waterbury, Connecticut.
25
26 FOR RESPONDENT: Joyce R. Branda, Acting Assistant
27 Attorney General; Ernesto H. Molina, Jr.,
28 Assistant Director; Jamie M. Dowd, Senior
29 Litigation Counsel, Office of
30 Immigration Litigation, United States
31 Department of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a Board
2 of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,
3 ADJUDGED, AND DECREED that the petition for review is DISMISSED for
4 lack of jurisdiction.
5
6 Petitioner Huascar Cristian Veras-Martinez, a native and
7 citizen of the Dominican Republic, seeks review of a January 30, 2014,
8 decision of the BIA affirming a September 26, 2013, decision of an
9 Immigration Judge (“IJ”) denying his motion to terminate
10 proceedings. In re Huascar Cristian Veras-Martinez, No. A045 382
11 600 (B.I.A. Jan. 30, 2014), aff’g No. A045 382 600 (Immig. Ct.
12 Hartford Sept. 26, 2013). We assume the parties’ familiarity with
13 the underlying facts and procedural history of this case.
14
15 We lack jurisdiction to review a final order of removal against
16 an alien, such as Veras-Martinez, who was found removable based on
17 his previous conviction of an aggravated felony. 8 U.S.C.
18 § 1252(a)(2)(C). Nevertheless, we retain jurisdiction to review
19 constitutional claims or questions of law. 8 U.S.C.
20 § 1252(a)(2)(D). For jurisdiction to attach, however, such claims
21 must be colorable. See Barco-Sandoval v. Gonzales, 516 F.3d 35,
22 40-41 (2d Cir. 2008). Here, Veras-Martinez has raised no colorable
23 claim.
24
25 Veras-Martinez’s proportionality argument is frivolous. “It
26 is settled that deportation, being a civil procedure, is not
27 punishment and the cruel and unusual punishment clause of the Eighth
28 Amendment accordingly is not applicable.” Santelises v. INS, 491
29 F.2d 1254, 1255-56 (2d Cir. 1974); see also Harisiades v.
30 Shaughnessy, 342 U.S. 580, 594 (1952); Fong Yue Ting v. United States,
31 149 U.S. 698, 730 (1893). And while in Padilla v. Kentucky the
32 Supreme Court acknowledged that “deportation is a particularly
33 severe ‘penalty,’” it stated that “it is not, in a strict sense, a
34 criminal sanction.” 559 U.S. 356, 365 (2010).
35
36 Veras-Martinez’s remaining due process arguments are also
37 frivolous. “Parties claiming denial of due process in immigration
38 cases must, in order to prevail, ‘allege some cognizable prejudice
39 fairly attributable to the challenged process.’” Garcia-Villeda v.
2
1 Mukasey, 531 F.3d 141, 149 (2d Cir. 2008) (quoting Lattab v. Ashcroft,
2 384 F.3d 8, 20 (1st Cir. 2004)). Other than his meritless
3 proportionality argument, Veras-Martinez did not raise any of the
4 alleged due process violations——that the IJ did not grant him a
5 hearing on his right to apply for relief, give him an opportunity
6 to seek relief, or advise him of available relief——before the BIA.
7 He therefore failed to exhaust these claims. See Steevenez v.
8 Gonzales, 476 F.3d 114, 117 (2d Cir. 2007). Regardless,
9 Veras-Martinez was given an opportunity to be heard on his motion
10 to terminate, as counsel argued proportionality before the IJ and
11 filed a brief in support of that argument. The IJ asked him whether
12 he would apply for any relief, and he expressly stated his intent
13 to seek termination of the proceedings but no other relief. Even
14 assuming the IJ failed to meet an obligation to advise him of
15 available relief, his aggravated felony conviction precludes asylum,
16 withholding of removal, and cancellation of removal, and he has not
17 identified, either on appeal to the BIA or before this Court, any
18 other relief for which he may be eligible. See 8 U.S.C.
19 §§ 1158(b)(2)(A), (B); 1229b(a)(3); 1231(b)(3)(B). Accordingly,
20 Veras-Martinez’s due process arguments are frivolous.
21
22 For the foregoing reasons, the petition for review is DISMISSED
23 for lack of jurisdiction.
24 FOR THE COURT:
25 Catherine O=Hagan Wolfe, Clerk
3