Oscar Alvarado v. Eric Holder, Jr., No. 10-1002 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-1002 OSCAR SIFREDO ALVARADO, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Submitted: September 15, 2010 Decided: October 21, 2010 Before DUNCAN, DAVIS, and WYNN, Circuit Judges. Petition denied by unpublished per curiam opinion. Jaime W. Aparisi, Silver Spring, Maryland, for Petitioner. Tony West, Assistant Attorney General, Jamie M. Dowd, Senior Litigation Counsel, Andrew N. O Malley, 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 Unpublished opinions are not binding precedent in this circuit.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: Oscar Sifredo Alvarado, a native and citizen of El Salvador, petitions for review of a final administrative order of expedited removal Enforcement ( ICE ). issued by Immigration and Customs For the reasons discussed below, we deny the petition for review. Pursuant to 8 U.S.C. § 1252(a)(2)(C) (2006), we lack jurisdiction, except as provided in 8 U.S.C. § 1252(a)(2)(D) (2006), to review the final order of removal of an alien who is removable crimes, found for having including removable been convicted aggravated for having of felonies. been certain Because convicted of enumerated Alvarado an was aggravated felony, under § 1252(a)(2)(C), we have jurisdiction to review factual determinations that trigger the jurisdiction-stripping provision, such as whether [Alvarado] [i]s an alien and whether []he has been convicted of an aggravated felony. Ashcroft, 301 F.3d 202, 203 (4th Cir. 2002). these two factual § 1252(a)(2)(C), (D), determinations, we can claims or questions of law. only then, consider Ramtulla v. Once we confirm under 8 U.S.C. constitutional See Mbea v. Gonzales, 482 F.3d 276, 278 n.1 (4th Cir. 2007). Although Alvarado concedes that he is a native and citizen of El Salvador, he denies the allegation that he is removable as an aggravated felon. 2 Based on our review of the record, we find that Alvarado s conviction under Maryland law for sexual offense in the third degree amounted to sexual abuse of a minor and was therefore an aggravated felony. See 8 U.S.C. § 1101(a)(43)(A) (2006) (defining aggravated felony as including the murder, rape, or sexual abuse of a minor); United States v. Diaz-Ibarra, 522 F.3d 343, (defining sexual abuse of a minor ). * 348 (4th Cir. 2008) Accordingly, Alvarado is indeed an alien who has been convicted of an aggravated felony, and § 1252(a)(2)(C) divests us of jurisdiction over the petition for review absent a colorable constitutional claim or question of law. Alvarado raises two additional issues which arguably can be considered questions of law in his petition for review, namely, (1) whether ICE violated his right to counsel by failing to consider his response to the Notice of Intent to Issue a Final Administrative Order and failing to include this document in the administrative record; and (2) whether he was denied a bond hearing in violation of his due process rights. To succeed on a procedural due process claim, Alvarado must demonstrate (1) that a defect in the proceeding rendered * We reject Alvarado s argument that his conviction was not final for immigration purposes. See 8 U.S.C. § 1101(a)(48)(A) (2006) (defining conviction as the formal judgment of guilt of the alien entered by a court ). 3 it fundamentally unfair and (2) that the defect prejudiced the outcome of the case. Anim v. Mukasey, 535 F.3d 243, 256 (4th Cir. 2008); accord Rusu v. INS, 296 F.3d 316, 320-22 (4th Cir. 2002). We note that the Attorney General ascertained that Alvarado s response was indeed a part of the record before the agency and record. the was inadvertently omitted from the administrative Moreover, even assuming that ICE neglected to consider response, Alvarado cannot demonstrate the requisite prejudice as his claim that his conviction was not final for immigration purposes is clearly without merit. that Alvarado s contention that he was Finally, we find entitled to a bond hearing is outside the scope of the petition for review. See Joseph v. Holder, 600 F.3d 1235 (9th Cir. 2010) (explaining that bond determination hearings and removal hearings are entirely separate proceedings). Accordingly, dispense with oral we deny argument the petition because the for facts review. and We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. PETITION DENIED 4
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