Bustamante v. Mukasey

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 11, 2008
No. 07-60911
Summary Calendar Charles R. Fulbruge III
Clerk
NAPOLEON ARTURO BUSTAMANTE, also known as Arthur L Bustamante,
also known as King Arthur XIII
Petitioner
v.
MICHAEL B MUKASEY, U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A20 905 044
Before WIENER, STEWART, and CLEMENT, Circuit Judges
PER CURIAM:*
Petitioner Napoleon Arturo Bustamante, a native and citizen of the
Phillippines, petitions for review of the dismissal by the Board of Immigration
Appeals (BIA) of his appeal of the immigration judge’s (IJ) order of removal. The
BIA determined that Bustamante was estopped from raising his alienage as an
issue because he had been convicted in 2006 for impersonating a United States
citizen, in violation of 18 U.S.C. § 911.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
No. 07-60911
In a pro se brief, Bustamante asserts that he made the required prima
facie showing of citizenship and that the issue of his alienage was res judicata
prior to his criminal conviction because the issue was resolved when previous
deportation proceedings against him were terminated in 1976. Liberally
construed, Bustamante’s brief also contends that a May 2003 Social Security
Administration (SSA) determination that he was a United States citizen likewise
had a res judicata effect.
Bustamante’s 2006 conviction for impersonating a United States citizen
in violation of § 911 estops him from raising his alienage as an issue in the
instant deportation proceedings. See Howard v. INS, 930 F.2d 432, 434-36 (5th
Cir. 1991). Furthermore, Bustamante has not met his burden of proving his
contentions that the issue of his citizenship was litigated in either the
deportation or the SSA proceedings, and thus he has not shown that the BIA
erred in its determination. See Andrade v. Gonzales, 459 F.3d 538, 545 (5th Cir.
2006); Moin v. Ashcroft, 335 F.3d 415, 418 (5th Cir. 2003); In re Braniff Airways,
Inc., 783 F.2d 1283, 1289 (5th Cir. 1986).
Bustamante also contends that the DHS wrongfully detained him for more
than 90 days and that the denial of his release on bond and a change of venue
were unconstitutional. To the extent that Bustamante is challenging his
detention and the IJ’s denial of bail prior to the IJ’s order of removal, we do not
have jurisdiction to consider these discretionary determinations. See 8 U.S.C.
§ 1226(e). To the extent that Bustamante is challenging his detention and the
denial of bail after the order of removal was rendered, he did not raise these
issues or the issue of venue before the BIA, so we do not have jurisdiction to
consider these unexhausted issues. See Heaven v. Gonzales, 473 F.3d 167, 177
(5th Cir. 2006).
AFFIRMED.
2