Gonzales v. Attorney General of the United States

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
1-10-2006
Gonzales v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3333
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"Gonzales v. Atty Gen USA" (2006). 2006 Decisions. Paper 1767.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-3333
________________
CESAR ROLANDO GONZALES,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order
of the Board of Immigration Appeals
(Agency No. A72 669 745)
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
JANUARY 6, 2006
Before: SLOVITER, SMITH AND VAN ANTWERPEN, Circuit Judges
(Filed January 10, 2006 )
_______________________
OPINION
_______________________
PER CURIAM
Cesar Gonzales, a native and citizen of Guatemala, petitions for review of a final
order of removal issued by the Board of Immigration Appeals (“BIA”). We will deny the
petition.
I.
Gonzales entered the United States in 1989, and in 2002 was convicted of
fraudulent use of entry documents under 18 U.S.C. § 1546(a). Gonzales was
subsequently found removable for having been convicted of an aggravated felony. The
Immigration Judge (“IJ”) denied Gonzales’ application for statutory withholding of
removal and relief under the Convention Against Torture, finding that Gonzales was not
credible and alternatively that he had not established a basis for relief. In June 2005, the
BIA adopted and affirmed the IJ’s decision. Gonzales filed a timely petition for review.
II.
As Gonzales was convicted of an aggravated felony, see 8 U.S.C. §
1101(a)(43)(P), our jurisdiction over the order of removal is limited to the review of
constitutional claims and questions of law. 8 U.S.C. § 1252(a)(2)(C), (D); 8 U.S.C. §
1227(a)(2)(A)(iii); see also Papageorgiou v. Gonzales, 413 F.3d 356, 368 (3d Cir. 2005).1
We review constitutional and legal claims de novo. Chong v. District Dir., Immigration
& Naturalization Serv., 264 F.3d 378, 386 (3d Cir. 2001); Wang v. Ashcroft, 368 F.3d
1
We reject the government’s argument that we lack jurisdiction because Gonzales
fails to raise a “colorable” claim. Brief of Respondent at 9. As discussed infra, Gonzales
alleges both constitutional and legal error in the removal proceedings.
2
347, 349 (3d Cir. 2004).
Gonzales claims that he was denied due process by the IJ’s “arbitrary refusal . . . to
set the number of witnesses to maybe two – particularly when [the IJ] refused to give pre-
hearing ruling on the question of which party had burden of proof.” Petitioner’s Brief at
20. In light of the IJ’s finding that even if credible Gonzales had not established a basis
for relief, see A.R.140-41, this claim fails because Gonzales has not demonstrated any
specific prejudice. See Bonhometre v. Gonzales, 414 F.3d 442, 448 (3d Cir. 2005).
Gonzales’ claim that he is eligible for relief from removal pursuant to the
humanitarian admission provisions of INA § 207 is without merit. Section 207 applies to
refugees seeking admission from foreign countries, not persons such as Gonzales that are
already present in the United States. See 8 U.S.C. § 1157; Immigration & Naturalization
Serv. v. Cardoza-Fonseca, 480 U.S. 421, 433 (1987).
Although Gonzales alleges ‘legal error’ in the IJ’s adverse credibility
determination and denial of relief under the Convention Against Torture, Petitioner’s
Brief at 21, he is in effect only challenging the IJ’s factual findings. See Guo v. Ashcroft,
386 F.3d 556, 561 (3d Cir. 2004). As discussed supra, our review is limited to questions
of law and constitutional claims.
III.
Gonzales also claims that his continued detention violates his right to due process.
Petitioner’s Brief at 22. Challenges to post-removal order detention should be raised in a
3
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 Gonzales 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).
IV.
Accordingly, for the reasons stated above we will deny the petition for review.