Filippo Sardella v. Eric Holder, Jr.

Case: 09-60631 Document: 00511134458 Page: 1 Date Filed: 06/07/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 7, 2010
No. 09-60631
Summary Calendar Lyle W. Cayce
Clerk
FILIPPO SARDELLA,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A018 592 352
Before WIENER, DeMOSS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Filippo Sardella, a citizen and native of Italy, petitions this court for
review of the Board of Immigration Appeals’ (BIA’s) order affirming the
Immigration Judge’s (IJ’s) final order of removal and the IJ’s denial of his
application for cancellation of removal. In his petition for review, Sardella does
not contest the BIA’s determination that he was removable as charged because
he had two prior convictions for crimes involving moral turpitude and one prior
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 09-60631 Document: 00511134458 Page: 2 Date Filed: 06/07/2010
No. 09-60631
conviction for a controlled substance offense. Instead, he raises claims
concerning the denial of his application for cancellation of removal.
Sardella, who was convicted in 2005 of possession of crack cocaine in New
York and who had prior state drug convictions, contends that the BIA erred by
treating his 2005 conviction as equivalent to an aggravated felony under the
recidivist provisions of the Controlled Substances Act. See 21 U.S.C. § 844(a).
The BIA correctly determined that Sardella should be considered as having
committed an aggravated felony for immigration law purposes. See
Carachuri-Rosendo v. Holder, 570 F.3d 263, 265-68 (5th Cir. 2009), cert. granted,
130 S.Ct. 1012 (Dec. 14, 2009) (No. 09-60). Therefore, as the BIA concluded,
Sardella was ineligible for cancellation of removal under 8 U.S.C. § 1229b.
The remaining arguments raised in Sardella’s petition for review likewise
fail to show error in connection with the BIA’s decision. His contention that
venue is improper in this court is unavailing. Because his immigration
proceedings were completed in a location within this circuit, venue is proper in
this court. See Jama v. Gonzales, 431 F.3d 230, 232 (5th Cir. 2005); see also
8 U.S.C. § 1252(b)(2). Insofar as Sardella raises a challenge to the decision of the
Department of Homeland Security concerning the location in which he was
detained, this challenge is unavailing because such decisions are not amenable
to judicial review. See 8 U.S.C. § 1226(e).
Finally, Sardella’s due process claim fails because the record shows that
he received all the process he was due. See Manzano-Garcia v. Gonzales, 413
F.3d 462, 470-71 (5th Cir. 2005). He received notice of the charges against him,
and the immigration judge who conducted the proceedings conducted several
hearings at which counsel spoke on his behalf. See id. To the extent he contends
that his due process rights were infringed because he did not receive a hearing
on his request for cancellation of removal in his preferred location, this
argument fails because he had no right to such a hearing. See Gutierrez-Morales
v. Homan, 461 F.3d 605, 609 (5th Cir. 2006). The petition for review is DENIED.
2