Rojas-Paredes v. Atty Gen USA ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
6-9-2008
Rojas-Paredes v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 07-1402
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-1402
_______________
RAMON ARMANDO ROJAS PAREDES,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
_______________
On Petition for Review of an Order of
the Board of Immigration Appeals
(No. A41-303-558)
Immigration Judge: Hon. Alberto J. Riefkohl
_______________
Submitted Under Third Circuit LAR 34.1(a)
May 9, 2008
_______________
Before: BARRY and STAPLETON, Circuit Judges, and
RESTANI* , Judge
(Opinion filed: June 9, 2008)
*
Honorable Jane A. Restani, Chief Judge of the United
States Court of International Trade, sitting by designation.
John J. Garzon, Esq.
Suite 204
46-12 Queens Boulevard
Sunnyside, NY 11104-0000
Counsel for Petitioner
Richard M. Evans, Esq.
Paul Fiorino, Esq.
Michelle G. Latour, Esq.
Michele Y.F. Sarko, Esq.
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044-0000
Counsel for Respondent
______________
OPINION OF THE COURT
_______________
RESTANI, Judge.
Petitioner Ramon Armando Rojas Paredes, a native and
citizen of the Dominican Republic, petitions for review of a final
order of the Board of Immigration Appeals (“BIA”) dismissing
his appeal from an Immigration Judge’s (“IJ”) removal order.
The IJ concluded that two New Jersey state convictions against
petitioner constituted offenses for which petitioner may be
deported under § 237(a)(2) of the Immigration and Nationality
Act (“INA”).1 8 U.S.C. § 1227(a)(2)(A)(iii), (B)(i). Petitioner
1
The caption of the IJ’s removal order erroneously
indicates that the government charged petitioner with removability
2
did not appeal the state convictions but, rather, filed petitions for
writs of error coram nobis to challenge them. 2 On appeal to the
BIA, petitioner argued that the IJ’s decision of removal was
capricious and erroneous because his challenges to the state
convictions were still pending. The BIA affirmed the IJ’s
decision, concluding that the state convictions were final for
immigration removal purposes. Petitioner argues that the BIA
erred and violated his due process rights by basing its order on
the state convictions, because the convictions were being
appealed and therefore were not yet final.
Although 8 U.S.C. § 1252(a)(2)(C) provides that “no
court shall have jurisdiction to review any final order of removal
against an alien who is removable by reason of having
committed [certain] criminal offense[s],” 8 U.S.C.
§ 1252(a)(2)(D) grants courts jurisdiction to review
“constitutional claims or questions of law raised upon a petition
for review” of final removal orders. See also Papageorgiou v.
Gonzales, 413 F.3d 356, 357–58 (3d Cir. 2005). We review
questions of law de novo. Caroleo v. Gonzales, 476 F.3d 158,
162 (3d Cir. 2007).
under INA § 237(a)(2)(A)(i). (See App. for Pet’r at 4a.)
2
The record is unclear as to when, exactly, petitioner filed
the petitions for post-conviction relief. The only evidence of
petitioner’s effort to obtain such relief is a letter from Criminal
Legal Research Inc, dated August 27, 2006, stating that the
organization “ha[d] been retained to file 2 motions for Coram
Nobis” and that “both motions should [be] ready within 15 days.”
(App. for Pet’r at 164a.) The record also suggests that the IJ was
not sure as to the status of the petitions at the time he rendered his
decision on August 29, as he noted that the post-conviction relief
“appears to be pending or appears to be a plan by . . . Criminal
Legal Research, Inc.” (Id. at 6a.) Nonetheless, in his Notice of
Appeal to the BIA, dated August 31 and filed on September 1,
petitioner claimed that he was “waiting for decision on [his] motion
for coram nobis at the State Court of New Jersey.” (Id. at 75a,
77a.)
3
“[A] conviction does not attain a sufficient degree of
finality for immigration purposes until direct appellate review of
the conviction has been exhausted or waived.” Matter of Ozkok,
19 I. & N. Dec. 546, 552 n.7 (BIA 1988) (citing Marino v. INS,
537 F.2d 686 (2d Cir. 1976); Aguilera-Enriquez v. INS, 516
F.2d 565 (6th Cir. 1975); Will v. INS, 447 F.2d 529 (7th Cir.
1971)), superceded by statute on other grounds. Here,
petitioner’s time to directly appeal his convictions had expired,
and a petition for a writ of error coram nobis is not a direct
appeal of, but rather a collateral attack on, a conviction. See
United States v. Gross, 614 F.2d 365, 368 (3d Cir. 1980).
We have not considered previously the issue of whether
the pendency of post-conviction motions or other forms of
collateral attack negates the finality of convictions for
immigration removal purposes. Our sister circuits that have
addressed the issue, however, have concluded that such
pendency does not vitiate finality, unless and until the
convictions are overturned as a result of the collateral motions.
See United States v. Garcia-Echaverria, 374 F.3d 440, 445–46
(6th Cir. 2004) (citing Aguilera-Enriquez, 516 F.2d at 570–71);
Grageda v. INS, 12 F.3d 919, 921 (9th Cir. 1993); Okabe v. INS,
671 F.2d 863, 865 (5th Cir. 1982); Will, 447 F.2d at 533. We
find these decisions well-reasoned, see no reason to deviate from
this view, and adopt it as the law in this Circuit.
As to petitioner’s argument that, under Lopez v.
Gonzales, 549 U.S. 47 (2006), “a state offense may not be held
punishable as a felony under federal law,” (Br. for Pet’r at 20),
petitioner did not raise it before the BIA rendered its decision.3
See 8 U.S.C. § 1252(d)(1) (exhaustion of administrative
3
Petitioner filed a Motion to Reconsider and Reopen the
BIA decision, arguing that Lopez nullified the basis for the
removal order because he “was convicted of a state drug felony that
would not be punishable as a felony under federal law.” (App. for
Pet’r at 45a.) Nonetheless, because petitioner was removed after
filing the Motion, it was withdrawn pursuant to 8 C.F.R.
§1003.2(d).
4
remedies mandatory and jurisdictional); see also Bonhometre v.
Gonzales, 414 F.3d 442, 447 (3d Cir. 2005) (“To exhaust a claim
before the agency, an applicant must first raise the issue before
the BIA or IJ, so as to give it the opportunity to resolve a
controversy or correct its own errors before judicial
intervention.” (internal quotations and citation omitted)). In any
event, petitioner misapprehended the holding in Lopez. There,
the Supreme Court reversed a decision of removal not because
state offenses were not punishable under federal law, but
because the state felony conviction there constituted only a
misdemeanor under federal law. Lopez, 549 U.S. at 633.
For the foregoing reasons, the petition for review will be
DENIED.
5