Jose Neto v. Attorney General United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-2263
___________
JOSE NETO,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of
the Secretary of Homeland Security
(Agency No. A096-415-556)
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 3, 2012
Before: AMBRO, HARDIMAN and ROTH, Circuit Judges
(Opinion filed: February 13, 2013)
_________________
OPINION
_________________
PER CURIAM
Jose Neto, a citizen of Brazil, petitions for review of a final administrative order of
removal (“FARO”) issued by the Secretary of Homeland Security. For the following
reasons, we will dismiss the petition for lack of jurisdiction.
I.
Neto, a native and citizen of Brazil, was found guilty and convicted in the United
States District Court for the District of Massachusetts for various charges relating to alien
smuggling. United States v. Neto, 659 F.3d 194 (1st Cir. 2011), cert. denied, 132 S. Ct.
1611 (2012). He is currently serving a sixty-month sentence at the Moshannon Valley
Correctional Institution.
On February 28, 2012, the Department of Homeland Security (“DHS”) served
Neto with a Notice of Intent placing him in expedited administrative removal proceedings
pursuant to 8 U.S.C. § 1228(b), and charging him as removable under 8 U.S.C.
§ 1227(a)(2)(A)(iii) as an aggravated felon as defined by 8 U.S.C. § 1101(a)(43)(N)
(relating to alien smuggling). Neto contested removability, arguing that his conviction
was not final for immigration purposes in light of his then-pending appeal of the denial of
his motion to vacate his sentence pursuant to 28 U.S.C. § 2255. He did not request
withholding or deferral of removal. The proceedings were referred to Scott Blake, DHS
Assistant Field Office Director in Allenwood, Pennsylvania, who determined that Neto
was ineligible for any relief from removal and, acting in his capacity as a delegate of the
Secretary of Homeland Security, issued a FARO ordering Neto removed to Brazil on
April 6, 2012. 1
Neto filed a “Motion to Review Deportation Order” with the District Court for the
Middle District of Pennsylvania on April 24, 2012. The District Court transferred the
1
The FARO was served on Neto on April 12, 2012.
2
motion to this Court to be docketed as a petition for review, and the Government has
moved to dismiss for lack of jurisdiction.
II.
We have jurisdiction under 8 U.S.C. § 1252(a) to review expedited removal
orders. “Because the basis for removal is [Neto’s] conviction for an aggravated felony,
our jurisdiction is limited under the REAL ID Act to ‘constitutional claims or questions
of law.’” Pierre v. Att’y Gen., 528 F.3d 180, 184 (3d Cir. 2008) (en banc); 8 U.S.C.
§ 1252(a)(2)(C). As a threshold matter, such claims must be colorable, e.g., they must
not be “wholly insubstantial and frivolous.” Pareja v. Att’y Gen., 615 F.3d 180, 186 (3d
Cir. 2010) (citations omitted).
III.
Neto’s principal claims are (1) that he was a conditional lawful permanent resident
at the time of his proceedings and therefore ineligible for expedited removal, (2) that the
government was barred from ordering him removed prior to the conclusion of his then-
pending appeal of his § 2255 motion, and (3) that his due process rights were violated
because he was not afforded an opportunity to appear before an Immigration Judge. 2 For
2
Neto also claimed that the government failed to commence removal proceedings within
five years of his purported adjustment of status as required by 8 U.S.C. § 1256(a), the
predicate conviction for his removal was obtained through entrapment, and that he was
denied counsel. Each of these claims is without merit. Because Neto was ordered
removed as an aggravated felon, and not due to any error in adjusting his status, 8 U.S.C.
§ 1256(a) is inapplicable. See Garcia v. Att’y Gen., 553 F.3d 724, 726 (3d Cir. 2009).
Neto may not challenge that conviction in immigration proceedings. See Drakes v. INS,
330 F.3d 600, 604 (3d Cir. 2003). Finally, Neto was informed of his right to counsel and
3
the reasons explained below, none of these claims is colorable and, consequently, none is
within the ambit of our limited jurisdiction. See 8 U.S.C. § 1252(a)(2)(C); Pareja , 615
F.3d at 186.
First, Neto argues that he should not have been subjected to expedited removal
proceedings because DHS did not properly terminate his conditional permanent resident
status, provided by 8 U.S.C. § 1186a(b). See 8 U.S.C. § 1228(b)(2)(A) (restricting
expedited removal proceedings to aliens “not lawfully admitted for permanent
residence”). This argument is belied by the Declaration of Douglas P. Sabins, an officer
with U.S. Immigration and Customs Enforcement, which Neto submitted with his brief.
Brief for Petitioner at Exhibit A. Sabins indicated that Neto’s two-year conditional
resident status expired in November 2006 because he failed to petition to remove the
conditional basis of his status. Id. If a petition to remove the conditional basis is not
submitted within the 90-day period immediately preceding the second anniversary of
obtaining the conditional permanent resident status, the status is terminated by operation
of statute. See 8 U.S.C. §§ 1186a(c)(2); (d)(2)(A).
Neto’s claim that the government was barred from ordering him removed prior to
the conclusion of his then-pending appeal of his § 2255 motion was similarly frivolous.
His direct appeal concluded one week prior to service of the Notice of Intent. See Neto,
does not contest that he was provided a list of free legal services, A.R. 2; his failure to
secure representation prior to his hearing does not constitute a violation of the right to
due process. See Ponce-Leiva v. Ashcroft, 331 F.3d 369, 376-77 (3d Cir. 2003)
(explaining that the inability to obtain counsel does not constitute a violation of the right
to counsel or due process).
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132 S. Ct. 1611 (denying certiorari on February 21, 2012). Any pending collateral
motion, such as his § 2255 motion, “does not vitiate finality [for immigration purposes],
unless and until the convictions are overturned as a result of the collateral motions.”
Paredes v. Att’y Gen., 528 F.3d 196, 198-99 (3d Cir. 2008). Accordingly, DHS did not
err in treating his conviction as final, and Neto’s contrary arguments are frivolous.
Finally, Neto argues that he should have been afforded an opportunity to appear
before an Immigration Judge. Under 8 C.F.R. § 238.1(f)(3), an alien found removable in
expedited proceedings can request withholding of removal; the case is then referred to an
asylum officer for a “reasonable fear” determination. Id.; see Bamba v. Riley, 366 F.3d
195, 197 (3d Cir. 2004). Although Neto claims that he requested withholding of removal,
he did not do so in his acknowledgment of receipt of the Notice of Intent. Instead, he
indicated only that he wished to contest his removability. Accordingly, this claim, too, is
insubstantial. 3
IV.
3
Neto’s claim may also be construed as attacking the jurisdiction of a delegate of the
Secretary of Homeland Security to issue a FARO. Although the expedited administrative
removal statute authorizes the Attorney General to issue an order of removal to qualified
aliens, that authority was delegated to the former Immigration and Naturalization Service
(“INS”). The functions of the INS, including the proceedings at issue here, were
transferred to DHS by the Homeland Security Act enacted in 2002. See 6 U.S.C. §§ 251,
557. Accordingly, the detention and removal functions formerly implemented by the
Attorney General have been transferred to the Secretary of Homeland Security or his
delegates.
5
As Neto does not present any colorable constitutional claims or questions of law,
we will grant the Government’s motion to dismiss the petition for review for lack of
jurisdiction.
6