Mathew v. Mukasey

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 07-2457
EDWARDO A.A. MATHEW,
Petitioner,
v.
MICHAEL B. MUKASEY, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Torruella and Boudin, Circuit Judges.
Edwardo Alexandro Mathew on brief pro se.
Lauren E. Fascett, Trial Attorney, Civil Division, Jeffrey S.
Bucholtz, Acting Assistant Attorney General, Civil Division and
David V. Bernal, Assistant Director, Office of Immigration
Litigation, on brief for respondent.
October 29, 2008
Per Curiam. Petitioner Edwardo Alexandro Mathew was
ordered removed, under 8 U.S.C. § 1182(a)(2)(A)(i)(I), on the
ground that he had been convicted of a crime of moral turpitude and
thus was an inadmissible alien. After carefully reviewing the
record and the parties’ briefs, we affirm the order of removal
essentially for the reasons given by the Board of Immigration
Appeals (BIA). We add only the following comments:
1. Petitioner’s Criminal Records. As for the Apostille,
8 C.F.R. § 1287.6 is not the exclusive method for authenticating a
document. See Yongo v. INS, 355 F.3d 27, 31 (1st Cir. 2004).
Rather, authentication is a “flexible” doctrine and “requires
nothing more than proof that a document or thing is what it
purports to be.” Id. at 30. Here, since there is no question that
the documents certified by the Apostille are anything other than
copies of petitioner’s Aruban criminal record, it is plain that
this record was admissible for the purposes of establishing
petitioner’s conviction.
Petitioner next claims that there were translation errors
in this record. However, in determining whether a particular
offense qualifies as a crime of moral turpitude, “[t]he focus . .
. is on the inherent nature of the crime of conviction, as opposed
to the particular circumstances of the actual crime committed.”
Nguyen v. Reno, 211 F.3d 692, 695 (1st Cir. 2000) (emphasis added).
Thus, it is the definition contained in the applicable criminal
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statute that is the controlling factor. Maghsoudi v. INS, 181 F.3d
8, 14 (1st Cir. 1999).
Here, it is plain that at least one of petitioner’s
convictions, the one under Art. 315, qualifies as a crime of moral
turpitude. That is, a conviction under this article requires both
that the defendant intended to cause, and actually did cause,
serious physical harm. See Nguyen, 211 F.3d at 695 (it is a crime
of moral turpitude “to cause serious injury intentionally to
another person”) (internal quotation marks and citation omitted;
emphasis added). Thus, petitioner was properly treated as an
arriving alien under 8 U.S.C. § 1101(a)(13)(C)(v) and properly
found inadmissible under § 1182(a)(2)(A)(i)(I).
2. The Second Charge. Petitioner next argues that the
BIA could not remove him on the basis of having been convicted of
a crime of moral turpitude without first having determined that he
had fraudulently concealed this conviction in order to obtain his
adjustment of status to that of a lawful permanent resident. The
problem for petitioner is that neither of the pertinent statutes,
§ 1101(a)(13)(C)(v) and § 1182(a)(2)(A)(i)(I), contain any language
to this effect, and the statute that petitioner cites in support of
this argument, 8 U.S.C. § 1227(a)(2)(C), simply was not applied to
him in the instant proceedings.
3. Due Process Violations. Although petitioner claims
that the immigration proceedings were plagued by due process
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violations, he has not even attempted to show how such violations
prejudiced him -- i.e., how, in the absence of the claimed errors,
the result of the removal proceeding would have been different.
See Ibe v. Gonzales, 415 F.3d 142, 144 (1st Cir. 2005) (holding
that prejudice is “an essential requirement of a due process claim”
in the immigration context). These claims therefore are meritless.
Finally, we do not consider petitioner’s challenge to the
conditions of his detention pending the completion of the removal
proceedings because a petition for review, filed under 8 U.S.C. §
1252, is not the proper vehicle for such a challenge. See Ochieng
v. Mukasey, 520 F.3d 1110, 1115 (10th Cir. 2008) (holding that a
court of appeals, in a proceeding under 8 U.S.C. § 1252, is not the
“appropriate forum” in which to bring, the first instance, a
challenge to detention).
The petition for review therefore is denied.
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