Medrano-Nunez v. Holder ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-2002
EPIFANIO MEDRANO-NUNEZ,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: June 26, 2009 Decided: July 16, 2009
Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Petition denied by unpublished per curiam opinion.
Ronald D. Richey, LAW OFFICE OF RONALD D. RICHEY, Rockville,
Maryland, for Petitioner. Michael F. Hertz, Acting Assistant
Attorney General, William C. Peachey, Assistant Director, Eric
W. Marsteller, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Epifanio Medrano-Nunez, a native and citizen of
Mexico, petitions for review of an order of the Board of
Immigration Appeals (“Board”) dismissing his appeal from the
immigration judge’s denial of his request for a waiver of
inadmissibility pursuant to § 212(c) of the Immigration and
Nationality Act. The Board’s order also denied Medrano-Nunez’s
application for cancellation of removal as a matter of
discretion. *
Because Medrano-Nunez’s applications for a § 212(c)
waiver and for cancellation of removal were both denied as a
matter of discretion, we lack jurisdiction over the petition for
review except to the extent that Medrano-Nunez asserts questions
of law or constitutional claims that fall within the exception
set forth in 8 U.S.C. § 1252(a)(2)(D) (2006). See 8 U.S.C.
§ 1252(a)(2)(B)(i), (ii) (2006) (removing jurisdiction over
certain types of discretionary denials of relief); Higuit v.
Gonzales, 433 F.3d 417, 419 (4th Cir. 2006) (“[T]he REAL ID Act
confers upon courts of appeal a narrowly circumscribed
*
The Board’s order found that the immigration judge erred
in finding that Medrano-Nunez was statutorily ineligible for
cancellation of removal. The Board found the error to be
harmless, however, based on its finding that Medrano-Nunez did
not merit cancellation of removal as a matter of discretion.
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jurisdiction to resolve constitutional claims or questions of
law raised by aliens seeking discretionary relief.”).
Medrano-Nunez first argues that the Board, in
violation of his rights to due process and fundamental fairness,
erred in failing to reverse the immigration judge’s denial of
his application for cancellation of removal and remand for
further proceedings. Medrano-Nunez cannot state a colorable due
process violation, however, because he has no property or
liberty interest in his request for cancellation of removal.
See Dekoladenu v. Gonzales, 459 F.3d 500, 508 (4th Cir. 2006)
(“No property or liberty interest can exist when the relief
sought is discretionary.”).
Additionally, Medrano-Nunez argues that the Board
erred in considering a prior conviction for possession of
marijuana when weighing the negative and positive factors in his
case. He argues that he was never actually convicted of the
drug offense, but received a sentence of community supervision
without any adjudication of guilt. Our review of the record,
however, reveals that Medrano-Nunez was convicted of possession
of marijuana for immigration purposes. See 8 U.S.C.
§ 1101(a)(48)(A) (2006) (defining conviction for immigration
purposes); see Yanez-Popp v. INS, 998 F.2d 231 (4th Cir. 1993)
(holding Maryland court’s granting of “probation without
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judgment” constituted a conviction within the meaning of the
immigration laws).
Finally, Medrano-Nunez contends that the Board erred
in concluding that he was convicted of alien smuggling. He
points out that his 1993 conviction record was destroyed in a
flood at the U.S. Courthouse in Texas. Medrano-Nunez maintains
that there is therefore no proof that he has been convicted of
smuggling and that it “violates . . . notions of fundamental
fairness and Due Process for the Board to prejudice [him] by
concluding that he was indeed convicted of alien smuggling.”
We again note that Medrano-Nunez cannot state a
colorable due process violation. See Dekoladenu, 459 F.3d at
508. Moreover, Medrano-Nunez admitted before the immigration
judge that he had been convicted of smuggling, and the record
contains numerous documents confirming the conviction, including
the criminal complaint, a docket-type entry indicating the
disposition and date of judgment, and an INS investigative
report. Although Medrano-Nunez maintains that the Department of
Homeland Security had to present proof of his conviction
pursuant to 8 U.S.C. § 1229a(c)(3)(B) (2006), we find that these
documents “reasonably indicate[d] the existence of a criminal
conviction.” 8 C.F.R. § 1003.41(d) (2009); Rosales-Pineda v.
Gonzales, 452 F.3d 627, 630-31 (7th Cir. 2006) (holding that 8
C.F.R. § 1003.41(d), the implementing regulation to 8 U.S.C.
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§ 1229a(c)(3)(B), greatly expanded the range of documents that
may be used as proof of a conviction and finding no legal error
in Board’s decision to rely on rap sheet as proof of a drug
conviction).
Accordingly, we deny the petition for review. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
PETITION DENIED
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