                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-8-2006

Claros-Ramirez v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4343




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                                                             NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 05-4343
                                   ________________

                            ANA LUZ CLAROS-RAMIREZ,
                                                  Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES;
                   DEPARTMENT OF HOMELAND SECURITY,
                                                   Respondents
                    ____________________________________

                            On Review of a Decision of the
                            Board of Immigration Appeals
                              (Agency No. A95 118 268)
                         Immigration Judge: Esmeralda Cabrera
                     _______________________________________


                       Submitted Under Third Circuit LAR 34.1(a)
                                     June 7, 2006

         BEFORE: SLOVITER, SMITH and VAN ANTWERPEN, Circuit Judges

                                  (Filed: June 8, 2006)
                                 ____________________

                                      OPINION
                                _____________________


PER CURIAM

      Ana Luz Claros-Ramirez, a native and citizen of Honduras, has filed a petition for

review of an order of the Board of Immigration Appeals (“BIA”) affirming an Immigration
Judge’s (“IJ”) denial of her motion to reopen her removal proceedings. We will deny the

petition.

       Claros-Ramirez originally entered the United States without inspection in November

1989. She applied for asylum in 1993. While her asylum application was pending, Claros-

Ramirez traveled to Guatemala without obtaining advance parole. See 8 C.F.R. § 208.8

(providing that an asylum applicant who leaves the United States without first obtaining

advance parole is deemed to have abandoned her asylum application). She attempted to

reenter the United States in April 2002, and was charged with inadmissibility under

Immigration and Nationality Act (“INA”) § 212(a)(6)(A)(I) [8 U.S.C. § 1182(a)(6)(A)(I)].

       In March 2004, the IJ found that Claros-Ramirez was removable as charged, but

allowed her to voluntarily depart the United States by July 16, 2004. She waived her appeal

and failed to depart. Instead, in April 2005, Claros-Ramirez filed with the IJ a motion to

reopen, alleging that she was eligible for cancellation of removal. See INA § 240A [8

U.S.C. § 1229b]. The IJ denied her motion, finding that it was not filed within ninety days

of the removal order, see 8 C.F.R. § 1003.23(b)(1), and that Claros-Ramirez’s failure to

comply with the voluntary departure order rendered her statutorily ineligible for cancellation

of removal, see INA § 240B(d) [8 U.S.C. § 1229c(d)].

       On appeal to the BIA, Claros-Ramirez claimed that she was not bound by the IJ’s

order to voluntarily depart by July 16, 2004, because she had been granted temporary

protected status (“TPS”) until November 4, 2005. The BIA dismissed the appeal, holding

that the IJ properly found that Claros-Ramirez’s “failure to depart after having been granted


                                              2
the privilege of voluntary departure renders her statutorily ineligible for cancellation of

removal.”1 Claros-Ramirez timely petitioned for review.

        We review the BIA’s decision to affirm an IJ’s denial of a motion to reopen for abuse

of discretion. See Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir. 2005). Under this

standard, we will overturn the BIA’s decision only if it is “arbitrary, irrational or contrary to

law.” McAllister v. Attorney General, – F.3d –, 2006 WL 903203, at *4 (3d Cir. Apr. 10,

2006) (quotations and citations omitted).

        Pursuant to INA § 240B(d), an alien, like Claros-Ramirez, who “fails voluntarily to

depart the United States within the time period specified, . . . shall be . . . ineligible for a

period of 10 years for any further relief under . . . section 240A [(pertaining to cancellation

of removal)].” Claros-Ramirez does not contest the determination that she failed to

voluntarily depart by July 16, 2004, as originally ordered by the IJ. Rather, she essentially

alleges that she did not violate the voluntary departure order because she had been granted


    1
     The BIA also found that Claros-Ramirez “has not presented a claim of ineffective
 assistance of counsel that is compliant with our decision in Matter of Lozada, 19 I. & N.
 Dec. 637 (BIA 1988).” It appears that this finding was in response to Claros-Ramirez’s
 claim – made in a July 12, 2004 request for extension of the voluntary departure period –
 that her attorney failed to submit her application for cancellation of removal. We note,
 however, that in these circumstances only the district director, not the BIA, has authority
 to consider an application for an extension of the voluntary departure period. See 8
 C.F.R. § 1240.57. In any event, Claros-Ramirez was not prejudiced by her attorney’s
 alleged failure to apply for cancellation of removal. See Ponce-Leiva v. Ashcroft, 331
 F.3d 369, 377 (3d Cir. 2003) (holding that “[t]o advance a successful claim for ineffective
 assistance of counsel, an alien must demonstrate prejudice”). Claros-Ramirez last arrived
 in the United States in 2002, but cancellation of removal requires, inter alia, “physical[]
 presen[ce] in the United States for a continuous period of not less than 10 years
 immediately preceding the date of such application.” INA § 240A(b)(1)(A) [8 U.S.C.
 § 1229b(b)(1)(A)].

                                                  3
TPS until November 4, 2005. Significantly, however, no evidence in the record supports her

claim.

         In order to demonstrate that she had been granted TPS, Claros-Ramirez submitted to

the IJ and the BIA two employment authorization cards, which permitted her to work in the

United States from November 5, 2003 through November 4, 2005. As the government notes,

however, aliens may be eligible for such cards for a variety of reasons, see 8 C.F.R.

§ 247a.12, and there is no indication that Claros-Ramirez qualified based on TPS. On

appeal, Claros-Ramirez submitted several documents that actually undermine her contention

that she was granted TPS. For instance, she provided an undated letter from the Bureau of

Immigration and Customs Enforcement (“BICE”) asking her for proof that she had been

granted TPS. She also submitted a May 2005 letter from her to the BICE, stating that she is

applying for TPS. Perhaps most significant, however, is an application for TPS, date-

stamped May 9, 2005, in which Claros-Ramirez indicates that this is her first such

application.2 Therefore, even if we could consider these documents, see INA § 242(b)(4)(A)

[8 U.S.C. § 1252(b)(4)(A)], they would be of no benefit to Claros-Ramirez.



   2
     We note that an alien who applies for TPS and establishes a prima facie case of
 eligibility is entitled to “temporary treatment benefits” – including a prohibition on
 removal – while her TPS application is pending. See INA §§ 244(a)(1) and 244 (a)(4)(B)
 [8 U.S.C. §§ 1254a(a)(1) and 1254a(a)(4)(B)]; 8 C.F.R. § 244.10(e). Here, however, it
 appears that Claros-Ramirez is not prima facie eligible for TPS, as it is available only to
 those Honduran nationals who “have continuously resided in the United States since
 December 30, 1998, and been continuously physically present in the United States since
 January 5, 1999.” See Extension of the Designation of Temporary Protected Status for
 Honduras, 71 Fed. Reg. 16,328, 16,332 (Mar. 31, 2006); see also Escobar v. Gonzales,
 417 F.3d 363, 364 n.1 (3d Cir. 2005).

                                               4
       Finally, Claros-Ramirez suggests that the BIA erred by not considering her claim for

protection under the United Nations Convention Against Torture. She did not raise this issue

in her appeal to the BIA, however, and has thus failed to exhaust her available administrative

remedies. Accordingly, we lack jurisdiction to review this claim. See INA § 242(d)(1) [8

U.S.C. § 1252(d)(1)]; see also Bonhometre v. Gonzales, 414 F.3d 442, 448 (3d Cir. 2005).

       Under these circumstances, and in light of the “broad deference” that we must accord

the BIA’s decision, see Zheng v. Gonzales, 422 F.3d 98, 106 (3d Cir. 2005), we cannot say

that the BIA abused its discretion in affirming the IJ’s denial of Claros-Ramirez’s motion to

reopen. Accordingly, we will deny her petition for review.




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