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


10-18-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2813




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                                                                 NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 04-2813
                                    ____________

                            DENNIS MELCHOR BELLO,

                                           Petitioner

                                           v.

                             ALBERTO R. GONZALES,*
                         Attorney General of the United States

                                         Respondent
                                    ____________

                           On Petition for Review from an
                      Order of the Board of Immigration Appeals
                              (Board No. A93-265-230)
                                    ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 September 22, 2005

                 Before: ROTH, McKEE and FISHER, Circuit Judges.

                               (Filed: October 18, 2005)
                                    ____________

                             OPINION OF THE COURT
                                  ____________



      *
        Attorney General Alberto R. Gonzales has been substituted for former Attorney
General John Ashcroft, the original respondent in this case, pursuant to Fed. R. App.
P. 43(c).
FISHER, Circuit Judge.

       Dennis Melchor Bello (“Bello”), a native and citizen of the Philippines, petitions

this Court for review of a final order of the Board of Immigration Appeals (“BIA”)

affirming the Immigration Judge’s decision that Bello is deportable and ineligible for

suspension of deportation or voluntary departure based on a prior conviction for unlawful

possession of a firearm. We will deny the petition.

                                             I.

       As we write only for the parties, we will set forth only those facts necessary for our

analysis. Bello entered the United States as a non-immigrant visitor on April 18, 1985,

and, following expiration of his visitation period on October 16, 1985, he remained in the

country without authorization. On December 30, 1994, he was arrested in New Jersey for

unlawful possession of a firearm, and, on October 17, 1995, he pled guilty to this offense

in state court. His conviction has not been overturned or vacated. Bello admitted to these

facts during agency proceedings and does not challenge them in his petition for review.

       The Immigration and Naturalization Service (“INS”) 1 issued an order to show

cause against Bello in April 1996, charging him as an alien subject to deportation from

the United States under section 241 of the Immigration and Nationality Act (“INA”), 8


       1
        On March 1, 2003, the INS ceased to exist, and its interior enforcement functions
were transferred to the Bureau of Immigration and Customs Enforcement, within the
Department of Homeland Security. See Homeland Security Act, Pub. L. No. 107-296,
§ 441, 116 Stat. 2135, 2192 (2002). For purposes of this opinion, the agency will be
referred to as the INS.

                                             2
U.S.C. § 1251 (1996) (current version at 8 U.S.C. § 1227), because he had remained in

the United States longer than authorized, see INA § 241(a)(1)(B) (“Any alien who is

present in the United States [without authorization] is deportable.”), and had been

convicted of unlawful possession of a firearm, see INA § 241(a)(2)(C) (“Any alien who at

any time after admission is convicted under any law of . . . possessing . . . a firearm . . . in

violation of any law is deportable.”). In proceedings before the Immigration Judge,

during which Bello was represented by counsel, Bello conceded his alienage and

deportability but requested relief in the form of suspension of deportation or, in the

alterative, voluntary departure. During a hearing in 2003,2 the Immigration Judge did not

allow Bello to present evidence allegedly supporting his right to relief but, instead,

summarily denied the request on the ground that the prior firearms conviction rendered

Bello statutorily ineligible for suspension of deportation or voluntary departure. The BIA

affirmed the decision in May 2004, and Bello filed this timely petition for review.




       2
        Resolution of the matter was delayed when, during a hearing in 1996, the
Immigration Judge terminated the proceedings to allow Bello to challenge his prior
conviction. The decision to terminate the proceedings was reversed by the BIA in 2002,
and the matter was remanded to the Immigration Judge.

                                               3
                                             II.

       The claims in the petition for review, challenging the denial of suspension of

deportation and voluntary departure, are without merit.3 An alien convicted of an offense

listed under section 241(a)(2)(C) of the INA is statutorily ineligible for suspension of

deportation under section 244(a)(2) unless he or she has been “physically present in the

United States for a continuous period of not less than ten years following the commission

of an act, or the assumption of a status, constituting grounds for deportation.” INA

§ 244(a)(2), 8 U.S.C. § 1254(a)(2) (1996) (current version at 8 U.S.C. § 1229b). This


       3
        It also appears that we may lack statutory jurisdiction to consider these claims.
Because immigration proceedings against Bello were initiated before 1997 but the order
of deportation did not become final until 2004, this case is governed by the transitional
rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”), Pub. L. No. 104-208, § 309(b), 110 Stat. 3009. See Acosta v. Ashcroft, 341
F.3d 218, 220 (3d Cir. 2003). These rules provide that “there shall be no appeal permitted
in the case of an alien who is inadmissible or deportable by reason of having committed a
criminal offense covered in section 212(a)(2) or section 241(a)(2)(A)(iii), (B), (C), or (D)
of the Immigration and Nationality Act.” IIRIRA § 309(c)(4)(G). The Immigration
Judge and the BIA found, as Bello concedes in his petition for review, that Bello is an
alien and is deportable based on his conviction for unlawful possession of a firearm, an
offense that falls within the criminal offenses covered in section 241(a)(2)(C) of the INA.
These findings dictate application of section 309(c)(4)(G) of the IIRIRA and would seem
to preclude judicial review of the final order of deportation. See Acosta, 341 F.3d at 220.
Nevertheless, because the claims raised by Bello lack facial merit, we need not rest our
decision on these apparent jurisdictional deficiencies. See Bowers v. Nat’l Collegiate
Athletic Ass’n, 346 F.3d 402, 415-16 (3d Cir. 2003) (suggesting that courts may proceed
to merits without addressing the issue of statutory, as opposed to constitutional,
jurisdiction); see also Marquez-Almanzar v. INS, 418 F.3d 210, 216 n.7 (2d Cir. 2005)
(“[When] jurisdictional prerequisites to our consideration of the merits in [a] case are
imposed by statute, not the Constitution, [they] are not a bar to our assumption of
‘hypothetical jurisdiction’ where . . . the jurisdictional issues are complex and the
substance of the claim is plainly without merit.”).

                                             4
Court has previously indicated, in accordance with the interpretation of section 244(a)(2)

followed by the INS and the majority of courts to address the issue, that the period of

physical presence commences on the date of the most recent acts constituting grounds for

deportation. See Bufalino v. Holland, 277 F.2d 270, 280 (3d Cir. 1960), cited in In re

Wong, 13 I. & N. Dec. 427, 429-30 (1969).4 The last act constituting grounds for

deportation in this case occurred in October 1995, when Bello was convicted of unlawful

possession of a firearm. See INA § 241(a)(2)(C). Bello was not physically present in the




       4
        See also Okeke v. Gonzales, 407 F.3d 585, 596 (3d Cir. 2005) (Ambro, J.,
concurring) (noting that an alien seeking suspension of deportation under
section 244(a)(2) of the INA must establish continuous physical presence “from the date
of the commission of the last deportable act”); Gagliano v. INS, 353 F.2d 922, 929 (2d
Cir. 1965) (“[A]n alien who has committed a deportable act of any kind within ten years
of his application for suspension [is not] allowed to apply for such relief . . . .”); Patsis v.
INS, 337 F.2d 733, 740-42 (8th Cir. 1964) (same); R ICHARD D. S TEEL, S TEEL ON
IMMIGRATION L AW § 14:29 (2d ed. 1992) (same); cf. INS v. Aguirre-Aguirre, 526 U.S.
415, 424 (1999) (stating that INS interpretation of the INA should be afforded deference).
Only the Court of Appeals for the Ninth Circuit has held otherwise, in a single opinion in
1962 (predating the era of Chevron deference) in which it found that the section of the
INA at issue is susceptible to two reasonable constructions, one of which would support
the interpretation followed by the INS. See Fong v. INS, 308 F.2d 191, 194-95 (9th Cir.
1962). But cf. Chevron U.S.A. Inc. v. Natural Resources Def. Council, Inc., 467 U.S. 837,
842 (1984) (“[A] court may not substitute its own construction of a statutory provision for
a reasonable interpretation made by the administrator of an agency.”), cited in
Aguirre-Aguirre, 526 U.S. at 424.

                                               5
United States for ten years following this conviction,5 and, thus, he is ineligible for

suspension of deportation under section 244(a)(2) of the INA.

       An alien convicted of an offense listed under section 241(a)(2)(C) of the INA is

also statutorily ineligible for voluntary departure, regardless of any period of physical

presence in the United States. INA § 244(e)(1), 8 U.S.C. § 1254(e)(1) (1996) (current

version at 8 U.S.C. § 1229c). Bello concedes that his offense falls within section

241(a)(2)(C). As such, he is ineligible for voluntary departure.

       Also without merit is Bello’s claim that he suffered a deprivation of his right to

due process when the Immigration Judge denied his application for relief without holding

a full evidentiary hearing. The Due Process Clause does not, as Bello seems to argue,

offer a free-standing right to an evidentiary hearing on every request for relief raised in an

administrative or judicial proceeding. See, e.g., Rogal v. Am. Broad. Cos., Inc., 74 F.3d

40, 44-45 (3d Cir. 1996). Rather, it guarantees that a litigant will be provided with an

opportunity that is adequate under the particular circumstances to present the basis of his

or her request to the appropriate official. See, e.g., id.; see also Pennsylvania v. Riley, 84

F.3d 125, 130 (3d Cir. 1996). Bello was provided with this opportunity. He was allowed

to file his application for relief and to advance his request, with the assistance of counsel,


       5
           See 8 U.S.C. § 1229b(d)(1) (“[A]ny period of . . . continuous physical presence in
the United States shall be deemed to end . . . when the alien is served a notice to
appear . . . of this title . . . .”); see also IIRIRA § 309(c)(5) (“[S]ection 1229b(d) of this
title . . . shall apply to orders to show cause . . . issued before, on, or after the date of the
enactment of this Act.”).

                                                6
before the Immigration Judge. The Immigration Judge thereafter concluded that the

request could not be granted as a matter of law, based on the facts conceded by Bello.6

Once this determination was made, there was no need to proceed further or to conduct a

full evidentiary hearing. See id. (“An administrative agency need not provide an

evidentiary hearing when there are no disputed material issues of fact . . . .”). Bello

received all of the process that was “due” to him under the Constitution.

                                              III.

       We have considered the other arguments presented by Bello, including the

assertion that the Immigration Judge and the BIA should be estopped from raising the

issue of statutory ineligibility,7 and find them to be baseless.

       Accordingly, we will deny the petition for review.




       6
        Contrary to counsel’s contention in the brief in support of the petition (Br. of Pet’r
at 17), Bello’s application for relief was clearly “adjudicated” by the Immigration Judge
and the BIA: it was denied based on statutory ineligibility.
       7
         Counsel for Bello incorrectly asserts in the brief in support of the petition that the
“issue regarding [Bello’s] eligibility for relief” was not raised by the Immigration Judge
prior to the hearing in 2003. (Br. of Pet’r at 20.) To the contrary, the Immigration Judge
expressly noted during proceedings in 1996 that Bello was “obviously . . . statutorily
ineligible for . . . suspension of deportation . . . [or] voluntary departure.” (App. at 577.)
Counsel is reminded of the need for accuracy in representations to this Court regarding
the contents of the record on appeal.

                                               7
