Mayorga-Barreno v. Attorney General of United States

BLD-018 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-1187
___________
RAUL WILFREDO MAYORGA-BARRENO
a/k/a Rafael Nunez-Mayorga
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
Raul Mayorga,
Petitioner
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A096-539-978)
Immigration Judge: Honorable Susan G. Roy
____________________________________
Submitted on Respondent’s Motion for Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
October 20, 2011
Before: SCIRICA, SMITH and CHAGARES, Circuit Judges
(Filed: November 9, 2011)
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OPINION OF THE COURT
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PER CURIAM.
Raul Wilfredo Mayorga-Barreno has filed a petition for review of an order of the
Board of Immigration Appeals (“BIA”) denying his motion to reconsider its earlier
decision summarily affirming an Immigration Judge’s (“IJ”) decision to pretermit his
application for cancellation of removal. After Mayorga-Barreno filed his brief with this
Court, the Government moved for summary action. See 3d Cir. LAR 27.4; 3d Cir. I.O.P.
10.6. Because Mayorga-Barreno=s brief contains no argument that the BIA erred in
denying petitioner’s reconsideration motion, and instead takes issue solely with the
conclusions of the IJ, he has waived review of the only issues viable in this proceeding.
Accordingly, we will grant the Government’s motion and summarily deny Mayorga-
Barreno=s petition for review.
Because the parties are familiar with the facts, we present them only in brief
summary here. Mayorga-Barreno is a native and citizen of Ecuador who was admitted to
the United States on October 10, 1999, as a nonimmigrant visitor. Mayorga-Barreno
stayed beyond the permissible period and was served with a Notice to Appear on April
12, 2007, charging him as an overstay. Petitioner, through counsel, conceded
removability, and applied for relief in the form of cancellation of removal and,
alternatively, voluntary departure. However, Mayorga-Barreno had a criminal record and
had been found guilty of, inter alia, theft in violation of Mont. Code Ann. § 45-6-301(1).
Petitioner’s counsel agreed with the IJ that Mayorga-Barreno’s theft conviction is a crime
involving moral turpitude, thus rendering him ineligible for cancellation of removal as a
matter of law under INA § 240A(b)(1)(C), 8 U.S.C. § 1229b(b)(1)(C). Accordingly, the
IJ pretermitted petitioner’s application for cancellation of removal in an Oral Decision
and Order issued on April 21, 2009.
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Additionally, the IJ found that the record evidence and counsel’s concession
supported the conclusion that Mayorga-Barreno failed to establish the continuous
physical presence requirement that would demonstrate an eligibility for cancellation of
removal. The IJ thus pretermitted petitioner’s application for cancellation of removal on
this alternate basis as well. Finally, given petitioner’s numerous convictions and the fact
that he provided several aliases to various law enforcement officials, the IJ exercised her
discretion to deny Mayorga-Barreno’s application for voluntary departure, and petitioner
was ordered removed to Ecuador. The BIA affirmed the IJ’s decision, without opinion, in
an order dated April 12, 2010.
Mayorga-Barreno returned to the BIA with a timely motion seeking
reconsideration of its earlier decision. Petitioner provided no substantive argument, but
simply asserted that reconsideration was warranted on the basis of the decisions by the
United States Supreme Court in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), and the New
Jersey Supreme Court in State v. Nunez-Valdez, 975 A.2d 418 (N.J. 2009), dealing with
claims of ineffective assistance for counsel’s failure to advise clients of the immigration
consequences of their guilty pleas. The BIA denied petitioner’s reconsideration motion in
an order issued on December 28, 2010. The BIA noted that Mayorga-Barreno has
multiple convictions in different jurisdictions and failed to provide any evidence that his
state convictions have been vacated on account of counsel’s ineffective representation.
The BIA concluded that reconsideration was not warranted given that it had nothing
before it other than petitioner’s “generic collateral attacks on criminal convictions, which
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are supported by no more than a bare assertion that the convictions were improper” under
Padilla and Nunez-Valdez. BIA’s Order of 12/28/10 at 1. On January 24, 2011,
Mayorga-Barreno filed this petition for review.
In his opening brief, Mayorga-Barreno challenges the IJ’s decision to pretermit his
application for cancellation of removal. Specifically, Mayorga-Barreno argues that the IJ
erred in concluding that his misdemeanor theft conviction precluded him from applying
for cancellation of removal, and that the IJ should have allowed him to present evidence
regarding the hardship his son would face if he is removed. Unfortunately for petitioner,
this Court does not have jurisdiction to review the BIA=s April 12, 2010 order summarily
affirming the IJ’s decision because Mayorga-Barreno did not file his petition for review
within thirty days of that order.1 See 8 U.S.C. ' 1252(b)(1) (providing that a petition for
review must be filed not later than thirty days after the date of the final order of removal).
The petition for review was, however, timely with respect to the BIA=s December 28,
2010 order declining to reconsider its previous dismissal of the appeal. Therefore, this
Court has jurisdiction to review the BIA=s December 28, 2010 order.
That said, Mayorga-Barreno=s counseled brief does not contain any argument
whatsoever pertaining to the BIA=s December 28, 2010 order. Rather, as noted above,
Mayorga-Barreno=s brief focuses solely on the IJ=s decision underlying the BIA’s earlier
order of April 12, 2010. We thus deem any challenge to the December 28, 2010 order to
1
Mayorga-Barreno=s motion for reconsideration did not toll the time for filing a
petition for review of the BIA=s April 12, 2010 decision. Stone v. Immigration &
Naturalization Serv., 514 U.S. 386, 405 (1995).
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be waived. See Dwumaah v. Att’y Gen., 609 F.3d 586, 589 n.3 (3d Cir. 2010) (citing Lie
v. Ashcroft, 396 F.3d 530, 532 n.1 (3d Cir. 2005)); see also Ghana v. Holland, 226 F.3d
175, 180 (3d Cir. 2000) (holding that appellate arguments may not be raised for the first
time in a reply brief).
Because Mayorga-Barreno has abandoned the only issues available to him in this
proceeding, his petition for review presents us with “no substantial question.” 3d Cir.
I.O.P. 10.6. Accordingly, we will grant the Government=s motion and summarily deny the
petition for review.
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