Stewart v. Gonzales

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1786
SEON DWAYNE STEWART,
Petitioner,
versus
ALBERTO R. GONZALES, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A43-722-208)
Submitted: August 15, 2007 Decided: September 10, 2007
Before MICHAEL, TRAXLER, and DUNCAN, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Jonathan Y. Ai, LAW OFFICES AI & ASSOCIATES, P.C., Rockville,
Maryland, for Petitioner. Peter D. Keisler, Assistant Attorney
General, Richard M. Evans, Assistant Director, James A. Hunolt,
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Unpublished opinions are not binding precedent in this circuit.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:
Seon Dwayne Stewart, a native and citizen of Jamaica,
petitions for review of a decision of the Board of Immigration
Appeals, affirming the immigration judge’s finding that he is
removable as an aggravated felon, 8 U.S.C. § 1227(a)(2)(A)(iii)
(2000). Having reviewed Stewart’s claims, we deny the petition for
review.
Under 8 U.S.C.A. § 1252(a)(2)(C) (West 2005), “we have no
jurisdiction to review a final order of removal of an alien
removable for having committed an aggravated felony.” Ramtulla v.
Ashcroft, 301 F.3d 202, 203 (4th Cir. 2002). We do, however,
retain jurisdiction to review the factual determinations that
trigger the applicability of § 1252(a)(2)(C) -- that Stewart is an
alien and that he was convicted of an aggravated felony. Id.
Under 8 U.S.C.A. § 1252(b)(4)(B) (West 2005), “administrative
findings of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.” The immigration
judge found that the Department of Homeland Security established by
clear and convincing evidence that Stewart is a Jamaican citizen.
Upon reviewing the record, we conclude that this finding is not
unreasonable. See Markovski v. Gonzales, 486 F.3d 108, 110 (4th
Cir. 2007) (“An agency’s factual determinations are conclusive
unless unreasonable.”).
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Because we find that Stewart’s alienage and conviction
were established below, we have jurisdiction to review only
constitutional claims and questions of law. 8 U.S.C.A.
§ 1252(a)(2)(D) (West 2005); Mbea v. Gonzales, 482 F.3d 276, 278
n.1 (4th Cir. 2007). Stewart has raised three such claims, but
each lacks merit.
First, we find no due process violation in the denial of
a sixth continuance. Stewart was given ample opportunity to be
heard in a meaningful time and manner. Rusu v. INS, 296 F.3d 316,
321-22 (4th Cir. 2002). Due process did not require the
immigration judge to continue Stewart’s proceedings pending
resolution of the collateral challenge to his conviction. See
Grageda v. INS, 12 F.3d 919, 921 (9th Cir. 1993). Second,
Stewart’s Cruel and Unusual Punishment claim fails because the
Eighth Amendment does not apply to deportation and removal
proceedings. Fong Yue Ting v. United States, 149 U.S. 698, 730
(1893); Elia v. Gonzales, 431 F.3d 268, 276 (6th Cir. 2005), cert.
denied, 126 S. Ct. 2019 (2006). Third, Stewart alleges that 8
U.S.C.A. § 1101(a)(43) (2000), the statute defining aggravated
felonies under 8 U.S.C.A. § 1227(a)(2)(A)(iii), is
unconstitutionally overbroad because the definition can include
misdemeanors under state law. We need not address this issue,
however, because Stewart is removable based on his conviction for
burglary in the first degree, a felony under Maryland law.
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Accordingly, we deny the petition for review. 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 DENIED
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