Vargas v. Attorney General of the United States , 151 F. App'x 134 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
10-12-2005
Vargas v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-4420
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-4420
FRANKLIN J. VARGAS,
Petitioner
v.
ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA;
BUREAU OF CITIZENSHIP &
IMMIGRATION SERVICES,
Respondents
ON PETITION FOR REVIEW OF ORDER OF THE
BOARD OF IMMIGRATION APPEALS
(No. A41-298-949)
Submitted pursuant to LAR 34.1(a)
September 29, 2005
Before: ALITO and AMBRO, Circuit Judges, and RESTANI,* Chief Judge, United States
Court of International Trade.
(Filed: October 12, 2005 )
*
Honorable Jane A. Restani, Chief Judge of the United States Court of
International Trade, sitting by designation.
OPINION OF THE COURT
PER CURIAM:
Franklin J. Vargas (“Petitioner”), a native and citizen of the Dominican
Republic, seeks review of a decision by the Board of Immigration Appeals (“the BIA”).
The BIA affirmed the Immigration Judge’s (“the IJ”) denial of Petitioner’s motion to
reopen his removal proceedings, following the IJ’s in abstentia removal order entered
after Petitioner missed his hearing. Petitoner claims that the IJ and the BIA violated his
rights under the Due Process Clause of the Fifth Amendment. We conclude that no due
process violation occurred, and we deny the petition for review.
I.
Petitioner concedes that he is removable, based in part on a 1994 conviction
for burglary, but he sought a hearing to request a waiver pursuant to former Immigration
and Nationality Act § 212(c). Petitioner was first scheduled for a hearing in March 2003,
but he missed the hearing because his attorney told him the wrong hearing date. The IJ
entered a removal order in abstentia. Upon Petitioner’s motion to reopen, the IJ
concluded that “exceptional circumstances” warranting a new hearing pursuant to 8
U.S.C. § 1229a(b)(5)(C)(i) were not present. Yet the IJ scheduled a new hearing for
November 2004 as a singular “act of administrative grace.” Petitioner then missed his
second hearing due to heavy traffic, arriving 55 minutes late and 10 minutes after the IJ
left the bench. The IJ again entered a removal order in abstentia, and later denied
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Petitioner’s motion to reopen because exceptional circumstances were not present.
Petitioner argues that exceptional circumstances required the IJ to grant the
motion to reopen, and that denying the motion violated Petitioner’s due process rights.
Petitioner also argues that the BIA abused its discretion and violated his due process
rights by affirming the IJ without opinion pursuant to 8 C.F.R. § 1003.1(e)(4)(i).
II.
The Court’s review of this petition is limited.
Congress explicitly granted federal courts the power to review
final orders of removal in § 1252(a)(1), and implicit in this
jurisdictional grant is the authority to review orders denying
motions to reopen any such final order. Yet, just as our power
to review a final order is circumscribed by § 1252(a)(2)’s
various jurisdiction-stripping provisions, our jurisdiction to
entertain an attack on that order mounted through filing of a
motion to reopen is equally curtailed.
Assaad v. Ashcroft, 378 F.3d 471, 474 (5th Cir. 2004) (citations and internal quotations
omitted). “[N]o court shall have jurisdiction to review any final order of removal against
an alien who is removable by reason of having committed a criminal offense covered in
[8 U.S.C. § 1182(a)(2)] . . . .” 8 U.S.C. § 1252(a)(2)(C). Burglary is a crime of “moral
turpitude” covered in § 1182(a)(2). See De la Cruz v. INS, 951 F.2d 226, 228 (9th Cir.
1991). The Court retains jurisdiction over “constitutional claims or questions of law
. . . .” 8 U.S.C. § 1252(a)(2)(D); Papageorgiou v. Gonzales, 413 F.3d 356, 358 (3d Cir.
2005). However, Petitioner’s challenges to the IJ’s denial of the motion to reopen, and to
the BIA’s decision to streamline his case, implicate review for abuse of discretion.
3
Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir. 2005) (motion to reopen); Smriko v.
Ashcroft, 387 F.3d 279, 296 (3d Cir. 2004) (decision to streamline).
Therefore, we have jurisdiction over Petitioner’s due process claims, but not
over his arguments that the IJ and the BIA abused their discretion. See Patel v. United
States Attorney Gen., 334 F.3d 1259, 1263 (11th Cir. 2003) (concluding that
§ 1252(a)(2)(C) prevents review of motions to reopen, but asserting jurisdiction over a
constitutional due process claim); Durant v. INS, 393 F.3d 113, 115, amended by 2004
U.S. App. LEXIS 27904 (2d Cir. 2004) (“a holding by this Court that the BIA abused its
discretion in denying a motion to reopen and ordering that the case be remanded to the
BIA would have the effect of undermining the jurisdictional bar imposed by 8 U.S.C.
§ 1252(a)(2)(C)”); cf. Bakhtriger v. Elwood, 360 F.3d 414, 424–25 (3d Cir. 2004)
(concluding that discretionary decisions may not be challenged under habeas corpus
review of BIA decisions where review encompasses only constitutional and legal claims).
III.
Petitioner argues that the IJ violated his due process rights. The
requirements of due process “depend[] on the circumstances of the particular situation.”
Dia v. Ashcroft, 353 F.3d 228, 239 (3d Cir. 2003) (quoting Marincas v. Lewis, 92 F.3d
195, 203 (3d Cir. 1996)). “The fundamental requirement of due process is the
opportunity to be heard at a meaningful time and in a meaningful manner.” Abdulai v.
Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001) (emphasis added) (quoting Mathews v.
4
Eldridge, 424 U.S. 319, 333 (1976)). After carefully considering Petitioner’s argument
and reviewing the record, we find no due process violation in the IJ’s denial of the motion
to reopen. See Sharma v. INS, 89 F.3d 545, 548 (9th Cir. 1996) (finding no due process
violation where petitioners were one hour late due to traffic).
IV.
Petitioner also argues that the BIA denied his due process rights in
affirming the IJ without opinion pursuant to 8 C.F.R. § 1003.1(e)(4)(i). “[T]he
streamlining regulations do not violate the Due Process Clause of the Constitution.” Dia,
353 F.3d at 228. Petitioner has not shown that the regulations are unconstitutional as
applied to him.
V.
For the reasons given above, we deny Franklin J. Vargas’ petition.