                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-12-2005

Vargas v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4420




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                                                             NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                    No. 04-4420


                             FRANKLIN J. VARGAS,
                                           Petitioner

                                          v.

                           ATTORNEY GENERAL
                    OF THE UNITED STATES OF AMERICA;
                         BUREAU OF CITIZENSHIP &
                          IMMIGRATION SERVICES,

                                                  Respondents




                ON PETITION FOR REVIEW OF ORDER OF THE
                    BOARD OF IMMIGRATION APPEALS
                             (No. A41-298-949)


                         Submitted pursuant to LAR 34.1(a)
                                September 29, 2005

Before: ALITO and AMBRO, Circuit Judges, and RESTANI,* Chief Judge, United States
                        Court of International Trade.

                             (Filed: October 12, 2005 )




      *
            Honorable Jane A. Restani, Chief Judge of the United States Court of
            International Trade, sitting by designation.
                               OPINION OF THE COURT

PER CURIAM:

              Franklin J. Vargas (“Petitioner”), a native and citizen of the Dominican

Republic, seeks review of a decision by the Board of Immigration Appeals (“the BIA”).

The BIA affirmed the Immigration Judge’s (“the IJ”) denial of Petitioner’s motion to

reopen his removal proceedings, following the IJ’s in abstentia removal order entered

after Petitioner missed his hearing. Petitoner claims that the IJ and the BIA violated his

rights under the Due Process Clause of the Fifth Amendment. We conclude that no due

process violation occurred, and we deny the petition for review.

                                             I.

              Petitioner concedes that he is removable, based in part on a 1994 conviction

for burglary, but he sought a hearing to request a waiver pursuant to former Immigration

and Nationality Act § 212(c). Petitioner was first scheduled for a hearing in March 2003,

but he missed the hearing because his attorney told him the wrong hearing date. The IJ

entered a removal order in abstentia. Upon Petitioner’s motion to reopen, the IJ

concluded that “exceptional circumstances” warranting a new hearing pursuant to 8

U.S.C. § 1229a(b)(5)(C)(i) were not present. Yet the IJ scheduled a new hearing for

November 2004 as a singular “act of administrative grace.” Petitioner then missed his

second hearing due to heavy traffic, arriving 55 minutes late and 10 minutes after the IJ

left the bench. The IJ again entered a removal order in abstentia, and later denied



                                             2
Petitioner’s motion to reopen because exceptional circumstances were not present.

              Petitioner argues that exceptional circumstances required the IJ to grant the

motion to reopen, and that denying the motion violated Petitioner’s due process rights.

Petitioner also argues that the BIA abused its discretion and violated his due process

rights by affirming the IJ without opinion pursuant to 8 C.F.R. § 1003.1(e)(4)(i).

                                             II.

              The Court’s review of this petition is limited.

              Congress explicitly granted federal courts the power to review
              final orders of removal in § 1252(a)(1), and implicit in this
              jurisdictional grant is the authority to review orders denying
              motions to reopen any such final order. Yet, just as our power
              to review a final order is circumscribed by § 1252(a)(2)’s
              various jurisdiction-stripping provisions, our jurisdiction to
              entertain an attack on that order mounted through filing of a
              motion to reopen is equally curtailed.

Assaad v. Ashcroft, 378 F.3d 471, 474 (5th Cir. 2004) (citations and internal quotations

omitted). “[N]o court shall have jurisdiction to review any final order of removal against

an alien who is removable by reason of having committed a criminal offense covered in

[8 U.S.C. § 1182(a)(2)] . . . .” 8 U.S.C. § 1252(a)(2)(C). Burglary is a crime of “moral

turpitude” covered in § 1182(a)(2). See De la Cruz v. INS, 951 F.2d 226, 228 (9th Cir.

1991). The Court retains jurisdiction over “constitutional claims or questions of law

. . . .” 8 U.S.C. § 1252(a)(2)(D); Papageorgiou v. Gonzales, 413 F.3d 356, 358 (3d Cir.

2005). However, Petitioner’s challenges to the IJ’s denial of the motion to reopen, and to

the BIA’s decision to streamline his case, implicate review for abuse of discretion.

                                             3
Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir. 2005) (motion to reopen); Smriko v.

Ashcroft, 387 F.3d 279, 296 (3d Cir. 2004) (decision to streamline).

             Therefore, we have jurisdiction over Petitioner’s due process claims, but not

over his arguments that the IJ and the BIA abused their discretion. See Patel v. United

States Attorney Gen., 334 F.3d 1259, 1263 (11th Cir. 2003) (concluding that

§ 1252(a)(2)(C) prevents review of motions to reopen, but asserting jurisdiction over a

constitutional due process claim); Durant v. INS, 393 F.3d 113, 115, amended by 2004

U.S. App. LEXIS 27904 (2d Cir. 2004) (“a holding by this Court that the BIA abused its

discretion in denying a motion to reopen and ordering that the case be remanded to the

BIA would have the effect of undermining the jurisdictional bar imposed by 8 U.S.C.

§ 1252(a)(2)(C)”); cf. Bakhtriger v. Elwood, 360 F.3d 414, 424–25 (3d Cir. 2004)

(concluding that discretionary decisions may not be challenged under habeas corpus

review of BIA decisions where review encompasses only constitutional and legal claims).

                                           III.

             Petitioner argues that the IJ violated his due process rights. The

requirements of due process “depend[] on the circumstances of the particular situation.”

Dia v. Ashcroft, 353 F.3d 228, 239 (3d Cir. 2003) (quoting Marincas v. Lewis, 92 F.3d

195, 203 (3d Cir. 1996)). “The fundamental requirement of due process is the

opportunity to be heard at a meaningful time and in a meaningful manner.” Abdulai v.

Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001) (emphasis added) (quoting Mathews v.



                                            4
Eldridge, 424 U.S. 319, 333 (1976)). After carefully considering Petitioner’s argument

and reviewing the record, we find no due process violation in the IJ’s denial of the motion

to reopen. See Sharma v. INS, 89 F.3d 545, 548 (9th Cir. 1996) (finding no due process

violation where petitioners were one hour late due to traffic).

                                            IV.

              Petitioner also argues that the BIA denied his due process rights in

affirming the IJ without opinion pursuant to 8 C.F.R. § 1003.1(e)(4)(i). “[T]he

streamlining regulations do not violate the Due Process Clause of the Constitution.” Dia,

353 F.3d at 228. Petitioner has not shown that the regulations are unconstitutional as

applied to him.

                                             V.

              For the reasons given above, we deny Franklin J. Vargas’ petition.
