Argueta v. Attorney General of the United States

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
3-7-2006
Argueta v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-2710
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"Argueta v. Atty Gen USA" (2006). 2006 Decisions. Paper 1471.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-2710
________________
MAURICIO ARGUETA,
Petitioner
v.
*ATTORNEY GENERAL OF THE UNITED STATES
*Amended per clerk's order of 06/16/05
____________________________________
On Petition for Review of an Order
of the Board of Immigration Appeals
Agency No. A41 623 463
Immigration Judge Grace A. Sease
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
January 26, 2006
Before: MCKEE, FUENTES AND NYGAARD, CIRCUIT JUDGES
(Filed March 7, 2006)
_______________________
OPINION
_______________________
PER CURIAM
Mauricio Argueta petitions for review of a an order of the Board of Immigration
Appeals (“BIA”), dismissing his appeal of an Immigration Judge’s (“IJ’s”) final order of
removal. We will deny the petition.
In August 2004, Argueta, a native and citizen of El Salvador, was charged with
removability based on a 1994 conviction for Criminal Sale of a Controlled Substance in
the Third Degree, in violation of New York State Penal Code § 220.39. The Notice to
Appear charged that this conviction was an aggravated felony and a controlled substance
violation. Additional charges of removability were entered on October 19, 2004, based
on a 2001 conviction for criminal possession of a weapon in the 4 th degree in violation of
New York State Penal Code § 265.01; and a 2003 conviction for attempted criminal
possession of a controlled substance in the 5 th degree in violation of New York State
Penal Code § 110-220.06(5). The notice charged that the firearms conviction rendered
Argueta removable pursuant to section 237(a)(2)(C) of the Immigration and Nationality
Act (“INA”) [8 U.S.C. § 1227(a)(2)(C)], and that Argueta was also removable pursuant to
INA § 237(a)(2)(A)(ii) [8 U.S.C. § 1227(a)(2)(A)(ii)] because he had been convicted of
two crimes of moral turpitude.
Argueta then sought to simultaneously apply for a waiver of removal pursuant to
former INA § 212(c) and for cancellation of removal pursuant to INA § 240A [8 U.S.C.
§ 1229b]. An IJ denied relief, finding that even if he received a § 212(c) waiver of
removal for his 1994 conviction, he would be statutorily ineligible for cancellation of
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removal on the basis of his later convictions because his 1994 aggravated felony
conviction would remain. Argueta timely appealed to the BIA, but failed to file a brief.
The BIA dismissed the appeal for failure to file a brief.
In his brief here, Argueta essentially makes four arguments: (1) his 1994
conviction does not constitute an aggravated felony; (2) his 2003 conviction is on direct
appeal; (3) he received ineffective assistance of counsel when counsel failed to timely file
a brief with the BIA; and (4) his prolonged detention is unconstitutional.
As the Government notes, pursuant to 8 U.S.C. § 1252(d)(1), this Court may only
review a final order of removal if “the alien has exhausted all administrative remedies
available to the alien as of right.” Where the alien has failed to file a brief with the BIA,
we may still find that he has exhausted administrative remedies if his Notice of Appeal to
the BIA was sufficient to place the BIA on notice of what was at issue. Bhiski v.
Ashcroft, 373 F.3d 363, 368-69 (3d Cir. 2004). Argueta did not present his argument that
his 1994 conviction was not an aggravated felony at any level of the administrative
proceedings. Thus, we are without jurisdiction to review that claim.1
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If we had jurisdiction, however, we would find the argument without merit.
Argueta seems to argue that his conviction was only for possession, but the Certificate of
Disposition included in the record clearly indicates that the conviction was for “Criminal
Sale of a Controlled Substance, 3d degree.” A.R. 135 (emphasis added). Indeed, a
document Argueta included in his appendix to show the date of his 1994 conviction also
notes that it is for “Criminal Sale of a Controlled Substance 3d Degree.” Appendix, Exh.
A, second page.
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Argueta next argues that his 2003 conviction is on direct appeal.2 Even if this is so
(it is not clear from the record whether his appeal is a collateral or direct appeal), his 2001
firearms conviction remains. He cannot receive cancellation of removal for his 2001
conviction. Cancellation is available to an alien, who, among other things, “has not been
convicted of any aggravated felony.” INA § 240A(a). As the IJ correctly noted, even if
Argueta had received § 212(c) relief for his 1994 conviction, a waiver of removal does
not make the conviction “disappear,” and he would remain convicted of an aggravated
felony. Rodriguez-Munoz v. Gonzales, 419 F.3d 245, 248 (3d Cir. 2005).
Argueta also claims that his continued detention violates his right to due process.
Challenges to post-removal order detention should be raised in a habeas petition filed in
the appropriate District Court. See Zadvydas v. Davis, 533 U.S. 678, 687-88 (2001); 8
U.S.C. § 1252(a) (only eliminating district court’s habeas jurisdiction over orders of
removal). Moreover, even if we had jurisdiction over this claim, it does not appear that
Argueta has administratively exhausted the claim, see Duvall v. Elwood, 336 F.3d 228,
231-32 (3d Cir. 2003), and he has not provided any evidence that his removal will not
occur in the “reasonably foreseeable future,” Zadvydas, 533 U.S. at 701 (interpreting 8
U.S. C § 1231(a)(6) as authorizing an alien’s continued detention after the 90-day
removal period for a period reasonably necessary to effectuate removal).
2
When a conviction has been entered and direct appeal has been exhausted or waived
the conviction is final for deportation purposes. Post-conviction motions do not affect the
finality of the conviction. Aguilera-Enriguez v. INS, 516 F.2d 565, 570-71 (6 th Cir.
1975).
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Accordingly, for the reasons stated above we will deny the petition for review.
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