Ronald Flores Centeno v. Eric Holder, Jr. ( 2010 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 18, 2010
No. 09-60223
c/w No. 09-60559 Lyle W. Cayce
Summary Calendar Clerk
RONALD MAURICIO FLORES CENTENO,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petitions for Review of an Order of the
Board of Immigration Appeals
BIA No. A73 754 961
Before WIENER, PRADO and OWEN, Circuit Judges.
PER CURIAM:*
Ronald Mauricio Flores Centeno (Flores) has timely petitioned for review
of the Board of Immigration Appeals’s (BIA’s) decisions affirming the order of the
immigration judge (IJ) denying Flores’s application for withholding of
deportation and denying Flores’s request to reopen the deportation proceedings
and two requests for reconsideration. A native and citizen of Nicaragua, Flores
entered the United States without inspection, and deportation proceedings were
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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initiated against him on April 10, 1995, by issuance of an order to show cause.
Additional charges of inadmissibility/deportability were lodged on November 21,
2007, because Flores was convicted twice in Arkansas of possession of a
controlled substance and of shoplifting and third degree battery. At a hearing
before the IJ, Flores admitted the fact of his prior convictions. Flores also
admitted that he had been convicted, after entry, of two crimes involving moral
turpitude not arising out of a single scheme or criminal misconduct, and that he
had been convicted, after entry, of a controlled substance offense. The IJ
determined that the two misdemeanor drug possession convictions qualified as
an aggravated felony.
Flores applied for asylum, withholding of deportation under Immigration
and Nationality Act (INA) § 241(b)(3), and withholding of removal under the
Convention Against Torture (CAT). The IJ determined that Flores was not
eligible for asylum because of his aggravated felony conviction, and that he was
not entitled to withholding of deportation or relief under the CAT because he had
not carried his burden with respect to the likelihood of future persecution. The
BIA affirmed IJ’s decision, and it denied Flores’s requests for reconsideration,
to reopen deportation proceedings, and for reconsideration of the decision
denying the request to reopen.
Flores concedes that he is deportable under former Immigration and
Nationality Act (INA) § 241(a)(1)(B) because he entered the United States
without inspection, and that he is ineligible for asylum. Flores contends
nevertheless that he is not deportable under former INA § 241(a)(2)(A)(ii) and
(iii) on the basis of his status as an alien who was convicted following entry of
two crimes involving moral turpitude and as an aggravated felon.
This court has jurisdiction to review constitutional claims and questions
of law raised upon a petition for review. See Brieva-Perez v. Gonzales, 482 F.3d
356, 359 (5th Cir. 2007); see also 8 U.S.C. § 1252(a)(2)(D). We review questions
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of law de novo but defer “to the BIA’s interpretation of immigration statutes
unless the record reveals compelling evidence that the BIA’s interpretation is
incorrect.”1 Cantu-Delgadillo v. Holder, 584 F.3d 682, 686 (5th Cir. 2009)
(quotation marks omitted).
Flores has not exhausted his administrative remedies as to the question
whether he was deportable under former INA § 241(a)(2)(A)(ii), as an alien who,
after entry, was convicted of two crimes involving moral turpitude. See § 1252(d)
(“A court may review a final order of removal only if—(1) the alien has exhausted
all administrative remedies available to the alien as of right.”). Therefore, this
court does not have jurisdiction to consider the issue. See Toledo-Hernandez v.
Mukasey, 521 F.3d 332, 335-36 (5th Cir. 2008). In any event, Flores’s arguments
with regard to that ground of deportability and the other grounds of
deportability are without merit.
Flores contends that he is not deportable under former INA
§ 241(a)(2)(A)(ii) and (iii) on the basis of his status as an alien who was convicted
following entry of two crimes involving moral turpitude and as an aggravated
felon because his convictions did not occur “after entry” or “after admission.”
Flores contends that he should have been charged in removal proceedings under
INA § 237, and that he could not be removed under § 237 because he was never
“admitted” to the United States.
Flores’s arguments conflate the concepts of “entry” and “admission.” The
term “entry” was formerly defined as “‘any coming of an alien into the United
States, from a foreign port or place or from an outlying possession, whether
voluntarily or otherwise.’” Landon v. Plasencia, 459 U.S. 21, 25 n.3 (1982)
1
We note that Flores does not challenge the BIA's determination that he is deportable
as an aggravated felon. But see Carachuri-Rosendo v. Holder, ___ S. Ct. ___, 2010 WL 2346552
at *11 (June 14, 2010). Although Flores is pro se, we will not raise the issue sua sponte. See
Garcia v. Reno, 234 F.3d 257, 258 n.2 (5th Cir. 2000); Grant v. Cuellar, 59 F.3d 523, 524 (5th
Cir. 1995).
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(quoting former 8 U.S.C. § 1101(a)(13)). “The terms ‘admission’ and ‘admitted’
mean, with respect to an alien, the lawful entry of the alien into the United
States after inspection and authorization by an immigration officer.” 8 U.S.C.
§ 1101(a)(13)(A); see also In re Rosas-Ramirez, 22 I&N Dec. 616, 620 (BIA 1999);2
see generally 1 CHARLES GORDON,STANLEY MAILMAN, AND STEPHEN YALE-LOEHR,
IMMIGRATION LAW AND PROCEDURE, § 1.03[1][b] (Matthew-Bender, Rev. Ed.,
through June 2010) (discussing distinction between “entry” and “admission”).
Under former INA § 241(a)(2)(A)(ii) & (iii) and (B)(i), aliens were “deportable”
upon commission following “entry” of two or more crimes of moral turpitude, of
an aggravated felony, and of a controlled substance offense, respectively. Under
INA § 237(a)(2)(A) & (B), an alien is “removable” upon the commission of such
crimes following “admission.” See 8 U.S.C. § 1227(a)(2).
Under § 301(c)(1)(B) of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (1996) (IIRIRA),
deportation proceedings that were pending on the IIRIRA enactment date were
continued. IIRIRA § 301(c)(1)(B). Under IIRIRA § 309(c)(3), the Attorney
General could elect to terminate deportation cases pending on the IIRIRA
enactment date and to reinstate such cases as removal proceedings, a procedure
known as “repapering.” Rojas-Reyes v. INS, 235 F.3d 115, 125-26 (2d Cir. 2000).
In this case, the Attorney General exercised his discretion to continue the
deportation proceedings.3 Flores has not shown that the Attorney General
committed an error of law in exercising his discretion to continue the deportation
2
In Rosas-Ramirez, 22 I&N Dec. at 617, cited by Flores, the BIA held that the alien’s
adjustment of status to lawful permanent resident, under INA § 245A(b), constituted an
“admission” under § 237(a)(2)(A)(iii). 22 I&N Dec. at 623. Because Flores’s status was never
adjusted to lawful permanent resident, Rosas-Ramirez is inapposite.
3
The Attorney General points out that, if he had exercised his discretion to reinstate
removal proceedings against Flores, the charges would have been brought under INA § 212(a),
which pertains to inadmissible aliens, and not under INA § 237. See 8 U.S.C. § 1182(a)(2).
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proceedings under the charges asserted in the order to show cause, or that his
constitutional rights were violated. See Rojas-Reyes, 235 F.3d at 125-26.
Flores admitted in 1995 that he was deportable under former INA
§ 241(a)(1)(B) because he entered the United States without inspection. In 2008,
Flores admitted that he was convicted, after entry, of two crimes involving moral
turpitude not arising out of a single scheme or criminal misconduct, and that he
had been convicted, after entry, of a controlled substance offense. Flores has not
shown that the BIA committed an error of law in determining that he was
deportable under former INA § 241(a)(1)(A)(ii) & (iii) and (B)(i) because he was
convicted after entry of two crimes of moral turpitude, an aggravated felony, and
a controlled substance offense.
Flores argues that his attorney rendered ineffective assistance in
conceding that he was admitted to the United States. This issue was first
asserted in Flores’s request to reopen. The BIA’s denial of a request to reopen
is reviewed “under a highly deferential abuse of discretion standard.”
Manzano-Garcia v. Gonzales, 413 F.3d 462, 469 (5th Cir. 2005). Ordinarily, a
request to reopen must be filed within 90 days of entry of “the final
administrative decision was rendered in the proceeding sought to be reopened.”
8 C.F.R. § 1003.2(c)(2); see also 8 U.S.C. § 1229a(c)(7)(C)(i). Flores raises no
issue with respect to the BIA’s conclusion that his request to reopen was
untimely. Accordingly, this court lacks jurisdiction over his petition for review
of the order denying the request to reopen. See Enriquez-Alvarado v. Ashcroft,
371 F.3d 246, 248-50 (5th Cir. 2004). Moreover, because Flores’s ineffective
assistance arguments are based on his meritless contention that he did not
commit his various criminal offenses after entry, he has not shown that the
proceedings were fundamentally unfair because he received ineffective
assistance of counsel. See Mai v. Gonzales, 473 F.3d 162, 165 (5th Cir. 2006).
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Flores argues that he is eligible for adjustment of status under 8 U.S.C.
§ 1255(i) because he has been physically present in the United States since 1995,
and because he “petitioned for classification and labor certification” prior to April
30, 2001. This issue is unexhausted. See Toledo-Hernandez, 521 F.3d at 335-36.
The petitions for review are DENIED.
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