Fabiola del Socorro Gonzalez-Quintero v. U.S. Atty

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 7, 2005
No. 04-14592 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A31-330-232
FABIOLA DEL SOCORRO GONZALEZ-QUINTERO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of an Order of the
Board of Immigration Appeals
_________________________
(July 7, 2005)
Before BLACK, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Fabiola Del Socorro Gonzalez-Quintero, a Colombian national, petitions for
review of the final order of the Board of Immigration Appeals (“BIA”), which
affirmed an immigration judge’s (“IJ”) determination that she is deportable under
former Immigration and Nationality Act (“INA”) § 241(a)(2)(A)(iii) (1996) (now
INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii)), for having been convicted
of an aggravated felony, and under former INA § 241(a)(2)(B)(i) (1996) (now INA
§ 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i)), for having been convicted of
violating a law of the United States. Gonzalez-Quintero also petitions for review
of the final order of the BIA that affirms the IJ’s determination that she abandoned
her application for a waiver of deportability under former INA § 212(c), 8 U.S.C. §
1182(c) (repealed 1996) (“212(c) waiver”) and withholding of deportation under
former INA § 234(h) (1996) (now INA § 241(b)(3), 8 U.S.C. § 1231(b)(3))
because she failed to file those applications by the ordered date. On appeal,
Gonzalez-Quintero argues that the IJ and the BIA violated her due process rights in
determining that she abandoned her applications for the 212(c) waiver and
withholding of deportation.1
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Because Gonzalez-Quintero’s deportation proceedings commenced before April 1, 1997,
and the BIA issued the final deportation order after October 30, 1996, this case is governed by
the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of
1996, Pub. L. No. 104-208, 110 Stat. 3009 (1996) (“IIRIRA”). See Al Najjar v. INS, 257 F.3d
1262, 1276 (11th Cir. 2001).
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I. Jurisdiction
Before reaching the merits of Gonzalez-Quintero’s petition, we must
consider whether we have subject matter jurisdiction. See Farquharson v. Att’y
Gen., 246 F.3d 1317, 1319 (11th Cir. 2001). “We review subject matter
jurisdiction de novo.” Garcia v. Att’y Gen., 329 F.3d 1217, 1220 (11th Cir. 2003).
We also review the BIA’s statutory interpretation de novo and will defer to the
BIA’s interpretation if it is reasonable and does not contradict the clear intent of
Congress. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.
837, 842-44 (1984). “We review constitutional challenges de novo.” Lonyem v.
Att’y Gen., 352 F.3d 1338, 1341 (11th Cir. 2003).
The transitional rules provide that “there shall be no appeal permitted in the
case of an alien who is inadmissible or deportable by reason of having committed a
criminal offense covered in . . . [former] section 241(a)(2)(A)(iii), (B), (C), or (D).”
IIRIRA § 309(c)(4)(G). “Notwithstanding this restriction, this Court retains
jurisdiction to determine whether an alien is deportable under the immigration
statute.” Farquharson, 246 F.3d at 1320. Our authority to review exists only to
determine whether a petitioner is “(1) an alien (2) deportable (3) by reason of a
criminal offense listed in the statute.” Id.; Itani v. Ashcroft, 298 F.3d 1213, 1215
n.2 (11th Cir. 2002). If these conditions are met, then IIRIRA § 309(c)(4)(G)
divests us of our jurisdiction to review the deportation order. Garcia, 329 F.3d at
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1221.
According to former INA § 241(a)(2)(A)(iii), “[a]ny alien who is convicted
of an aggravated felony at any time after entry is deportable.” Furthermore,
according to former INA § 241(a)(2)(B)(i), “[a]ny alien who at any time after
admission has been convicted of a violation of . . . any law or regulation of . . . the
United States . . . is deportable.” Because the IJ found and the BIA affirmed that
Gonzalez-Quintero was deportable under both of these provisions, IIRIRA §
309(c)(4)(G) is implicated. See Itani, 298 F.3d at 1215 n.2.
Despite the jurisdictional bar of § 309(c)(4)(G) , we retain jurisdiction to
review “substantial constitutional questions raised by a petitioner on direct
review.” Farquharson, 246 F.3d at 1322. We also retain jurisdiction over
questions of law raised in a petition for review. INA § 242(a)(2)(D), 8 U.S.C. §
1252(a)(2)(D) (as amended by the REAL ID Act of 2005, Pub. L. No. 109-13, 119
Stat. 231 (2005) (“REAL ID Act”)).
The administrative record supports the conclusion that Gonzalez-Quintero is
“(1) an alien (2) deportable (3) by reason of a criminal offense listed in the statute.”
See Farquharson, 246 F.3d at 1320. During her deportation hearing, Gonzalez-
Quintero conceded that she was a native and citizen of Colombia. She did not
challenge the IJ’s finding that she was an alien before the BIA, nor does she do so
before this Court. Moreover, Gonzalez-Quintero admitted during her deportation
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hearing – and admits before this Court – that she was convicted of conspiracy to
possess with intent to distribute and distribution of “CDS: heroin and cocaine,” in
violation of 21 U.S.C. § 846. As ordered by the IJ and affirmed by the BIA, this
conviction was sufficient to deport Gonzalez-Quintero under either former §
241(a)(2)(A)(iii) (conviction for aggravated felony) or former § 241(a)(2)(B)(i)
(conviction for violating a law of the United States). Thus, Gonzalez-Quintero is
an alien deportable under either former § 241(a)(2)(A)(iii) or former §
241(a)(2)(B)(i).
Gonzalez-Quintero also concedes that, because she has been convicted of an
offense covered under former INA § 241(a)(2)(A)(iii), (B), (C), or (D), and is
therefore an alien deportable under either former § 241(a)(2)(A)(iii) or former §
241(a)(2)(B)(i), IIRIRA § 309(c)(4)(G) limits this Court’s jurisdiction over her
appeal. Accordingly, we lack jurisdiction to address the merits of her petition for
review, except to the extent she raises any substantial constitutional issues or
questions of law.
II. Substantial Constitutional Issues
Gonzalez-Quintero raises two due process claims. Due process requires that
all aliens be given notice and an opportunity to be heard in their deportation
proceedings. Fernandez-Bernal v. Att’y Gen., 257 F.3d 1304, 1310 n.8 (11th Cir.
2001). “In order to establish a due process violation, an alien must show that he or
5
she was deprived of liberty without due process of law, and that the asserted error
caused [her] substantial prejudice.” Garcia, 329 F.3d at 1222 (internal citations
omitted).
A. 212(c) Waiver
Gonzalez-Quintero argues on appeal that the IJ and BIA violated her due
process rights in holding that she abandoned her application for a discretionary
212(c) wavier and in failing to hold a hearing on the issue. “[T]his Court has held
that the failure to receive discretionary relief in the immigration context does not
deprive an alien of a constitutionally protected liberty interest.” Tefel v. Reno, 180
F.3d 1286, 1300 (11th Cir. 1999). Accordingly, “an alien has no constitutionally-
protected right to discretionary relief or to be eligible for discretionary relief.”
Oguejiofor v. Att’y Gen., 277 F.3d 1305, 1309 (11th Cir. 2002). Because a 212(c)
wavier is discretionary relief from deportation, and an alien has no constitutional
right to relief, Gonzalez-Quintero’s argument does not constitute a substantial
constitutional question. Accordingly, this court lacks jurisdiction to address this
issue.
B. Withholding of Deportation
Gonzalez-Quintero also argues on appeal that the IJ and BIA violated her
due process rights in holding that she abandoned her request for withholding of
deportation by filing her asylum application after the ordered deadline. Unlike a
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212(c) waiver, “withholding of removal [or deportation], where warranted, is a
mandatory and not a discretionary remedy.” Antipova v. Att’y Gen., 392 F.3d
1259, 1265 n.2 (11th Cir. 2004).
The IJ “may set and extend time limits for the filing of applications and
related documents and responses thereto, if any. If an application or document is
not filed within the time set by the [IJ], the opportunity to file that application or
document shall be deemed waived.” 8 C.F.R. § 1003.31(c).
We have not addressed whether an IJ violates an alien’s due process rights
when the IJ finds that the alien’s failure to file an asylum application by the
ordered deadline results in an abandonment or wavier of the alien’s request for
withholding of deportation. However, in a similar case, Kuschchak v. Aschroft,
366 F.3d 597, 604-06 (7th Cir. 2004), the Seventh Circuit held that the IJ did not
violate the alien’s due process rights in finding that the alien abandoned his
withholding of removal application. The IJ advised the alien of the deadline to file
any documents, but the alien ignored it; any confusion in relation to the application
was due to the alien and his attorney – not to the IJ; and the alien failed to show
prejudice, i.e., that the IJ’s actions had the potential for affecting the outcome of
the action. Id.Likewise, in the instant case, the IJ informed Gonzalez-Quintero that she
must file an asylum application before he could consider the relief of withholding
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of deportation. The IJ scheduled Gonzalez-Quintero’s next deportation hearing for
approximately one year later and notified Gonzalez-Quintero of her asylum
application deadline, which was approximately one month before the next hearing.
He also asked whether she had any questions, and she replied, through counsel,
that she had none. The IJ also sent Gonzalez-Quintero written notice of her next
deportation hearing, and reminded her that her application was due. Thus, any
confusion in relation to the application deadline was due to Gonzalez-Quintero or
her attorney, not the IJ.
Moreover, Gonzalez-Quintero has not demonstrated, or even argued, that the
determination that she abandoned her application for withholding of deportation
prejudiced her. She has not presented any evidence or arguments that the outcome
of the hearing would have been different had the IJ considered her untimely
application. Accordingly, Gonzalez-Quintero cannot establish a due process claim.
III. Question of Law
Gonzalez-Quintero also argues that her 212(c) waiver application should
have been considered “filed” when she submitted it, despite the fact that she had
not paid her filing fees. However, the immigration regulations mandate that a fee
receipt or a fee wavier form accompany the application for the application to be
considered filed with the immigration court. 8 C.F.R. § 1003.31(b). Gonzalez-
Quintero had not paid her filing fee, nor had she requested a fee waiver, when she
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initially submitted her 212(c) waiver application. Therefore, her application was
not considered filed when she submitted it to the IJ.
IV. Conclusion
Accordingly, because Gonzalez-Quintero has raised no substantial
constitutional arguments or questions of law that affect our jurisdiction to review
the BIA’s deportation order, we dismiss her petition for review.
PETITION DISMISSED.
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