Ugwu v. Gonzales

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1918
STANISLANS MADUAKO UGWU,
Petitioner,
versus
ALBERTO R. GONZALES, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A46-346-487)
Submitted: May 30, 2007 Decided: June 26, 2007
Before WILLIAMS and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Petition dismissed in part; denied in part by unpublished per
curiam opinion.
Randall L. Johnson, JOHNSON & ASSOCIATES, P.C., Arlington,
Virginia, for Petitioner. Peter D. Keisler, Assistant Attorney
General, Michelle E. Latour, Assistant Director, Michele Y. F.
Sarko, Office of Immigration Litigation, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Stanislans Maduako Ugwu, a native and citizen of Nigeria,
petitions for review of an order of the Board of Immigration
Appeals (Board) affirming, without opinion, the immigration judge’s
decision ordering him removed from the United States. For the
reasons discussed below, we dismiss the petition for review in part
and deny the petition for review in part.
Based on his own admissions before the immigration judge,
Ugwu was found removable as an inadmissible alien who had been
convicted of a crime involving moral turpitude. See 8 U.S.C.
§ 1182(a)(2)(A)(i)(I) (2000). Because we find that Ugwu is indeed
an alien who has been convicted of a crime involving moral
turpitude, 8 U.S.C.A. § 1252(a)(2)(C) (West 2005) divests us of
jurisdiction, except as provided in § 1252(a)(2)(D), to review
Ugwu’s final order of removal. We therefore dismiss the petition
for review in part.
Pursuant to § 1252(a)(2)(D), we retain jurisdiction over
“constitutional claims or questions of law.” In his petition for
review, Ugwu claims that his guilty plea to the underlying criminal
charges in the Circuit Court of Arlington County, Virginia, was not
knowing or voluntary as he did not fully understand the immigration
consequences of his actions. We find this claim to be without
merit. In order to pursue this claim, Ugwu’s remedy is to file for
post-conviction relief in his state criminal case. Moreover, the
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immigration judge and the Board cannot go behind the criminal
judgment and consider an alien’s collateral attack on his
conviction. See, e.g., Abiodun v. Gonzales, 461 F.3d 1210, 1217
(10th Cir. 2006); Olivera-Garcia v. INS, 328 F.3d 1083, 1087 (9th
Cir. 2003); Trench v. INS, 783 F.2d 181, 184 (10th Cir. 1986);
Zinnanti v. INS, 651 F.2d 420, 421 (5th Cir. 1981). We therefore
deny this portion of Ugwu’s petition for review.*
Accordingly, although we grant Ugwu’s pending motion to
proceed in forma pauperis, we dismiss the petition for review in
part and deny it in part. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
PETITION DISMISSED IN PART;
DENIED IN PART
*
To the extent that Ugwu’s argument that he was not an
arriving alien and thus should not have been charged as an alien
seeking admission to the United States can be considered an
appropriate legal or constitutional claim, we find that we have no
jurisdiction to consider this claim as Ugwu failed to present it to
the immigration judge or Board. See 8 U.S.C. § 1252(d)(1) (2000);
Asika v. Ashcroft, 362 F.3d 264, 267 n.3 (4th Cir. 2004).
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