Ortega v. Attorney General

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
12-1-2005
Ortega v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-2529
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-2529
________________
YOLANDA ORTEGA,
Appellant
v.
ATTORNEY GENERAL OF THE
UNITED STATES; BUREAU OF IMMIGRATION
& CUSTOMS ENFORCEMENT
____________________________________
On Petition for Review of an Order of the Board of Immigration Appeals
(Agency No. A90 247 104)
(initially docketed as an appeal from D. N.J. Civ. No. 03-CV-04172)
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
November 22, 2005
Before: SLOVITER, SMITH AND VAN ANTWERPEN, CIRCUIT JUDGES
(Filed: December 1, 2005)
_______________________
OPINION
_______________________
PER CURIAM
Yolanda Ortega filed an appeal from an order of the United States District Court
for the District of New Jersey, denying her petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2241. Pursuant to the Real ID Act of 2005, § 106(c), Pub. L. No. 109-13,
Div. B, 119 Stat. 231 (May 11, 2005), the pending appeal has been converted into a
petition for review. See Bonhometre v. Gonzales, 414 F.3d 442, 446 (3d Cir. 2005).1
An IJ found Ortega removable on three grounds: (1) conviction of a crime
involving moral turpitude; (2) conviction of a controlled substance violation; and (3)
having engaged in prostitution within 10 years of the date of application for visa,
admission or adjustment of status. Ortega admitted the factual allegations, but applied for
cancellation of removal pursuant to 8 U.S.C. § 1229b(a).2 The IJ pretermitted her
application, finding that her period of continuous residence terminated in 1991 when she
1
This court’s review would ordinarily extend only to review of the BIA’s order
entered August 5, 2003, denying Ortega’s motion for reconsideration, because the petition
for review was only timely as to that order. See Stone v. INS, 514 U.S. 386, 405 (1995);
Nocon v. INS, 789 F.2d 1028, 1033-34 (3d Cir. 1986). Pursuant to section 106(c) of the
REAL ID Act, the 30 day time period for filing a petition for review, 8 U.S.C.
§ 1252(b)(1), does not apply to cases pending in the District Court on the effective date of
the Act and transferred to a court of appeals pursuant to the provisions of the Act.
Similarly, a pending appeal that has been converted to a petition for review should not be
subject to the time limits of section 1252(b)(1). We thus have jurisdiction to consider the
BIA’s April 8, 2003 decision denying Ortega’s appeal from the decision of an
Immigration Judge (IJ) as well as the order denying her motion for reconsideration.
2
That provision allows the Attorney General to cancel removal for permanent resident
aliens who--(1) have been lawfully admitted for permanent residence for not less than 5
years; (2) have resided in the United States continuously for 7 years after having been
admitted in any status, and (3) have not been convicted of any aggravated felony. 8
U.S.C.A. § 1229b(a). Ortega was admitted as a conditional permanent resident in 1987.
However, pursuant to § 1229b(d)(1), the period of continuous residence terminates when
the alien has committed an offense referred to in 8 U.S.C. § 1182(a)(2), including
prostitution.
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was convicted of prostitution. The BIA dismissed the appeal, agreeing with the IJ that
Ortega was removable as charged and had not accrued the requisite 7 years of continuous
residence for cancellation of removal.
Ortega then filed a “motion to reconsider,” in which she alleged that she was a
“national” of the United States because she had applied for naturalization; that she was
eligible for a waiver of inadmissibility under section 212(h) of the Immigration and
Nationality Act [8 U.S.C. § 1182(h)], and that the § 212(h) waiver would allow her to
overcome the termination of the period of continuous residence required for cancellation
of removal. The BIA denied the motion to reconsider, as the matters raised in the motion
“could and should have been raised in conjunction with the respondent’s appeal.”
In her habeas petition, Ortega again asserted that she is a U.S. national, sought
review of the decision denying cancellation of removal, argued that she should receive a
§ 212(h) hearing and argued that she was eligible for relief pursuant to INA § 212(c). We
will deny her petition for review for the same reasons that the District Court gave for
denying her § 2241 petition.
In particular, as the District Court noted, the BIA properly applied the stop-time
rule of 8 U.S.C. § 1229b(d)(1) to find that Ortega’s period of continuous residence
stopped when she was convicted of prostitution. The 1996 amendment that changed how
continuous presence is calculated may be applied to all cases pending on or brought after
September 30, 1996. See Pinho v. INS, 249 F.3d 183 (3d Cir. 2001). Thus, Ortega could
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not meet the prerequisites for cancellation of removal.
The District Court properly noted that Ortega is not a national. A national is either
a citizen of the United States, or “a person who, though not a citizen of the United States,
owes permanent allegiance to the United States.” 8 U.S.C. § 1101(a)(22). For a citizen
of another country, “nothing less than citizenship will show ‘permanent allegiance to the
United States.’” Salim v. Ashcroft, 350 F.3d 307, 310 (3d Cir. 2003). Because Ortega
has not completed the naturalization process, she is neither a citizen nor a national, even
though she applied for naturalization.
We may not consider Ortega’s arguments that she is eligible for relief pursuant to
INA §§ 212(c) and 212(h), as she did not exhaust her administrative remedies as to those
arguments. See Bonhometre, 414 F.3d at 447 (requiring alien to raise an issue to BIA in a
manner that allows it to correct an error before seeking judicial review). We recognize
that Ortega raised her claim for relief pursuant to § 212(h) in her Motion to Reconsider
filed with the BIA. However, a new ground for relief does not constitute an error of fact
or law warranting reconsideration. See 8 C.F.R. § 1003.2(b)(1). A motion to the BIA to
reconsider “shall state the reasons for the motion by specifying the errors of fact or law in
the prior Board decision and shall be supported by pertinent authority.”
8 C.F.R. § 1003.2(b)(1). As Ortega failed to identify any such errors, the BIA did not
abuse its discretion in denying Ortega’s motion for reconsideration.
For the foregoing reasons, the petition will be denied.
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