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


1-10-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3333




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                                                     NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT

                               NO. 05-3333
                            ________________

                     CESAR ROLANDO GONZALES,

                                     Petitioner


                                     v.

                     ATTORNEY GENERAL OF THE
                          UNITED STATES,
                                Respondent

                 ____________________________________

                     On Petition for Review of an Order
                     of the Board of Immigration Appeals
                          (Agency No. A72 669 745)
                _______________________________________


                 Submitted Under Third Circuit LAR 34.1(a)
                            JANUARY 6, 2006

    Before:   SLOVITER, SMITH AND VAN ANTWERPEN, Circuit Judges

                         (Filed January 10, 2006 )


                        _______________________

                               OPINION
                        _______________________

PER CURIAM
       Cesar Gonzales, a native and citizen of Guatemala, petitions for review of a final

order of removal issued by the Board of Immigration Appeals (“BIA”). We will deny the

petition.

                                              I.

       Gonzales entered the United States in 1989, and in 2002 was convicted of

fraudulent use of entry documents under 18 U.S.C. § 1546(a). Gonzales was

subsequently found removable for having been convicted of an aggravated felony. The

Immigration Judge (“IJ”) denied Gonzales’ application for statutory withholding of

removal and relief under the Convention Against Torture, finding that Gonzales was not

credible and alternatively that he had not established a basis for relief. In June 2005, the

BIA adopted and affirmed the IJ’s decision. Gonzales filed a timely petition for review.

                                             II.

       As Gonzales was convicted of an aggravated felony, see 8 U.S.C. §

1101(a)(43)(P), our jurisdiction over the order of removal is limited to the review of

constitutional claims and questions of law. 8 U.S.C. § 1252(a)(2)(C), (D); 8 U.S.C. §

1227(a)(2)(A)(iii); see also Papageorgiou v. Gonzales, 413 F.3d 356, 368 (3d Cir. 2005).1

We review constitutional and legal claims de novo. Chong v. District Dir., Immigration

& Naturalization Serv., 264 F.3d 378, 386 (3d Cir. 2001); Wang v. Ashcroft, 368 F.3d



   1
      We reject the government’s argument that we lack jurisdiction because Gonzales
fails to raise a “colorable” claim. Brief of Respondent at 9. As discussed infra, Gonzales
alleges both constitutional and legal error in the removal proceedings.

                                              2
347, 349 (3d Cir. 2004).

       Gonzales claims that he was denied due process by the IJ’s “arbitrary refusal . . . to

set the number of witnesses to maybe two – particularly when [the IJ] refused to give pre-

hearing ruling on the question of which party had burden of proof.” Petitioner’s Brief at

20. In light of the IJ’s finding that even if credible Gonzales had not established a basis

for relief, see A.R.140-41, this claim fails because Gonzales has not demonstrated any

specific prejudice. See Bonhometre v. Gonzales, 414 F.3d 442, 448 (3d Cir. 2005).

       Gonzales’ claim that he is eligible for relief from removal pursuant to the

humanitarian admission provisions of INA § 207 is without merit. Section 207 applies to

refugees seeking admission from foreign countries, not persons such as Gonzales that are

already present in the United States. See 8 U.S.C. § 1157; Immigration & Naturalization

Serv. v. Cardoza-Fonseca, 480 U.S. 421, 433 (1987).

       Although Gonzales alleges ‘legal error’ in the IJ’s adverse credibility

determination and denial of relief under the Convention Against Torture, Petitioner’s

Brief at 21, he is in effect only challenging the IJ’s factual findings. See Guo v. Ashcroft,

386 F.3d 556, 561 (3d Cir. 2004). As discussed supra, our review is limited to questions

of law and constitutional claims.

                                             III.

       Gonzales also claims that his continued detention violates his right to due process.

Petitioner’s Brief at 22. Challenges to post-removal order detention should be raised in a



                                              3
habeas petition filed in the appropriate District Court. See Zadvydas v. Davis, 533 U.S.

678, 687-88 (2001); 8 U.S.C. § 1252(a) (only eliminating district court’s habeas

jurisdiction over orders of removal). Moreover, even if we had jurisdiction over this

claim, it does not appear that Gonzales has administratively exhausted the claim, see

Duvall v. Elwood, 336 F.3d 228, 231-32 (3d Cir. 2003), and he has not provided any

evidence that his removal will not occur in the “reasonably foreseeable future,” Zadvydas,

533 U.S. at 701 (interpreting 8 U.S. C § 1231(a)(6) as authorizing an alien’s continued

detention after the 90-day removal period for a period reasonably necessary to effectuate

removal).

                                           IV.

      Accordingly, for the reasons stated above we will deny the petition for review.
