Fraser v. Gonzales , 189 F. App'x 319 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 12, 2006
Charles R. Fulbruge III
Clerk
No. 05-60785
Summary Calendar
JOHN COURTNEY FRASER, also known as Andrew Burrell,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A90 234 737
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Before KING, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
John Courtney Fraser seeks review of the BIA order finding
him removable. Finding no error, we deny the petition.
As a threshold matter, we have jurisdiction to review
Fraser’s constitutional claims and questions of law pursuant to
the REAL ID Act. See 8 U.S.C. § 1252(a)(2)(D); Hernandez-
Castillo v. Moore, 436 F.3d 516, 518 (5th Cir. 2006), petition
for cert. filed (Mar. 28, 2006) (No. 05-1251). We reject
Fraser’s contention that he suffered any due process violation as
a result of the conversion of his habeas petition to a petition
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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for review and its transfer to this court, as Fraser has failed
to demonstrate how he has been prejudiced.
We review the Immigration Judge’s findings, adopted by the
BIA, for substantial evidence, with great deference given to the
IJ’s credibility determinations. Efe v. Ashcroft, 293 F.3d 899,
903 (5th Cir. 2002). Fraser contends that the IJ erred in
concluding that he was removable due to an aggravated felony
conviction for possession of a firearm by a felon in violation of
18 U.S.C. § 922(g)(2). Fraser argues that his underlying state
convictions forming the basis of his § 922(g)(2) conviction were
vacated, thereby invalidating his conviction. This contention is
without merit, as Fraser’s conviction was upheld on both direct
and collateral review. See Burrell v. United States, 384 F.3d
22, 24-25 (2d Cir. 2004). Fraser cannot collaterally attack the
validity of either his state or his federal convictions in an
immigration proceeding. See Brown v. INS, 856 F.2d 728, 731 (5th
Cir. 1988). Further, Fraser’s § 922(g)(2) conviction constitutes
an aggravated felony conviction for purposes of removal, and it
did so at the time of Fraser’s conviction. See 8 U.S.C.
§ 1101(a)(43)(E)(ii) (1994); 8 U.S.C. § 1227(a)(2)(A)(iii). The
IJ also properly denied asylum and cancellation of removal due to
the aggravated felony. See 8 U.S.C. § 1158(b)(2)(A)(ii), (B)(i);
8 U.S.C. § 1229b(a)(3).
In addition, the IJ did not err in denying discretionary
relief under § 212(c) of the former INA, because in 1990, the INA
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was amended to preclude such relief for aliens convicted of
aggravated felonies who, like Fraser, had served more than five
years in prison. See INS v. St. Cyr, 533 U.S. 289, 295 (2001).
Fraser’s contention that the INS delayed in seeking removal
prejudiced him because it eliminated the possibility of § 212(c)
relief is likewise without merit, as an alien has no due process
liberty interest in § 212(c) relief. See Nguyen v. District
Director, Bureau of ICE, 400 F.3d 255, 259 (5th Cir. 2005).
The IJ also denied relief pursuant to the United Nations
Convention Against Torture (CAT). Fraser’s brief fails to
address the merits of his CAT claim. Moreover, the IJ’s
conclusion was supported by substantial evidence as Fraser failed
to adduce any evidence that he faced torture at the hands of
government officials or persons acting with government
acquiescence. See 8 C.F.R. § 1208.18(a)(1).
Fraser next complains that the BIA erroneously denied his
motion for reconsideration as untimely, asserting that he should
be given the benefit of the prison mailing rule applicable in
other cases. This argument is without merit. See Smith v.
Conner, 250 F.3d 277, 279 & n.14 (5th Cir. 2001). Moreover, the
BIA concluded that it would deny the motion on the merits even it
had been timely.
Fraser also asserts that the IJ should have transferred
venue to New York from Louisiana. Our review of the record
reveals no abuse of the IJ’s broad discretion to determine
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whether to grant a motion to transfer venue. See Chow v. INS, 12
F.3d 34, 39 (5th Cir. 1993).
Finally, Fraser complains that he was denied access to
counsel, to witnesses, and to the Jamaican consulate. However,
the IJ repeatedly continued the proceedings to allow Fraser to
seek counsel, obtain documents, and complete his CAT application.
Fraser ultimately was unable to retain counsel or contact the
consulate, although he did contact the High Commissioner for
Refugees. Fraser has failed to show that the proceedings were
fundamentally unfair such that he was denied due process. See
Rosales v. Bureau of Immigration & Customs Enforcement, 426 F.3d
733, 736 (5th Cir. 2005).
For the foregoing reasons, the petition for review is
DENIED.