Grullon v. Mukasey

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 29, 2008
No. 06-60238
Summary Calendar Charles R. Fulbruge III
Clerk
FRANKLIN ROBINSON GRULLON
Petitioner
v.
MICHAEL B MUKASEY, U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A38 926 198
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Franklin Robinson Grullon, a native and citizen of the Dominican
Republic, petitions for review of decisions of the Board of Immigration Appeal
(BIA) that affirmed the denial of relief under former § 212(c) of the Immigration
and Nationality Act. Grullon argues that removability on account of his cocaine
conviction was not established by clear, convincing, and unequivocal evidence.
Grullon admitted that he did not appeal his removal order and that order was
vacated only in so far as it denied Grullon’s application for § 212(c) relief.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-60238
Further, Grullon does not challenge the validity of his removal order based on
his robbery conviction. Grullon thus has waived any claim regarding the validity
of the removal order on account of this conviction. See Rodriguez v. INS, 9 F.3d
408, 415 n. 15 (5th Cir. 1993).
Grullon asserts that he was deprived of his due process right to a fair trial
because he did not have the opportunity to examine evidence or submit evidence.
“Due process challenges to deportation proceedings require an initial showing
of substantial prejudice. Anwar v. INS, 116 F.3d 140, 144 (5th Cir. 1997).
Grullon has not alleged how he was substantially prejudiced by the failure to
examine evidence or submit evidence.
Grullon challenges the denial of § 212(c) relief, arguing that (1) the
favorable factors outweighed the adverse factors; (2) the Immigration Judge (IJ)
erred in relying on incorrect information in the presentence report; (3) the IJ
made findings of facts that were clearly erroneous; (4) the IJ denied relief
holding Grullon responsible for conduct to which he did not plead guilty; (5) the
IJ retried him for uncharged conduct; and (6) he was deprived of his due process
right to a fair hearing.
Section 1252(a)(2)(B)(ii) of Title 8 prohibits judicial review of discretionary
decisions of the Attorney General, including the grant or denial of a waiver of
removability. Section1252(a)(2)(D), however, permits review of claims involving
constitutional issues or questions of law. Because Grullon’s first three
arguments do not present a constitutional or legal question, we lack jurisdiction
over these claims. See § 1252(a)(2)(D); Marquez-Marquez v. Gonzales, 455 F.3d
548, 561 (5th Cir. 2006).
Grullon failed to explain how his fourth and fifth arguments relate to the
denial of § 212(c) relief. Because he failed to adequately brief these issues, we
do not consider them. See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir.
2003).
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No. 06-60238
Finally, Grullon’s fair hearing argument is unavailing. Although this
court has jurisdiction over the claim because it is constitutional in nature,
Grullon has no due process right to either discretionary relief under § 212(c) or
to a hearing to determine eligibility for such relief. See Gutierrez-Morales v.
Homan, 461 F.3d 605, 610 (5th Cir. 2006); Nguyen v. Dist. Dir., Bureau of
Immigration and Customs Enforcement, 400 F.3d 255, 259 (5th Cir. 2005).
Accordingly, Grullon’s petitions for review are DENIED.
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