                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-4-2008

Gonzalez-Lora v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1523




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                                                           NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                  No. 06-1523
                                  ___________

                       WILFREDO GONZALEZ-LORA,

                                                      Petitioner

                                       v.

              ATTORNEY GENERAL OF THE UNITED STATES,

                                                      Respondent

                   ____________________________________

                    On Petition for Review of an Order of the
                         Board of Immigration Appeals
                           (Agency No. A38 507 690)
                 Immigration Judge: Honorable Paul Grussendorf
                   ____________________________________

                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 June 23, 2008

             Before: McKEE, SMITH and CHAGARES, Circuit Judges

                         (Opinion filed: August 4, 2008)
                                 ___________

                                   OPINION
                                  ___________

PER CURIAM

    Wilfredo Lora-Gonzalez, a native and citizen of the Dominican Republic, was
admitted to the United States in 1984. In 1999, he was convicted on drug conspiracy

charges. See 21 U.S.C. §§ 846 and 841. The former Immigration and Naturalization

Service then charged Gonzalez-Lora with removability for having been convicted of an

aggravated felony as defined by Immigration and Nationality Act (“INA”) §§

101(a)(43)(B) and 101(a)(43)(U) [8 U.S.C. §§ 1101(a)(43)(B) and 1101(a)(43)(U)], see

INA § 237(a)(2)(A)(iii) [8 U.S.C. § 1227(a)(2)(A)(iii)], and for having been convicted of

a controlled substance offense, see INA § 237(a)(2)(B)(i) [8 U.S.C. § 1227(a)(2)(B)(i)].

An Immigration Judge (“IJ”) in Philadelphia found Gonzalez-Lora removable as charged

and, in December 2000, the Board of Immigration Appeals (“BIA”) dismissed his

appeal.1

       In July 2004, Gonzalez-Lora challenged the removal order in a 28 U.S.C. § 2241

petition filed in the Northern District of West Virginia, the jurisdiction in which he was

then incarcerated. While the § 2241 petition was pending, the REAL ID Act of 2005 took

effect, prompting the District Court to transfer the habeas petition to this Court to be

treated as a petition for review. See Bonhometre v. Gonzales, 414 F.3d 442, 446 (3d Cir.

2005) (noting that “all habeas corpus petitions brought by aliens that were pending in the

district courts on the date the Real ID Act became effective (May 11, 2005) are to be




   1
    In May 2002, Gonzalez-Lora filed a motion to reopen, which the BIA denied as
untimely. He sought reopening again in June 2004, but the BIA denied the motion as
numerically barred, and concluded that none of the exceptions to that bar were applicable.
See 8 C.F.R. § 1003.2(c)(3). Gonzalez-Lora has not challenged either of these decisions.

                                              2
converted to petitions for review and transferred to the appropriate courts of appeals).

Although INA § 242(a)(2)(C) [8 U.S.C. § 1252(a)(2)(C)] eliminates our jurisdiction to

entertain petitions for review from aliens like Lora-Gonzalez, INA § 242(a)(2)(D) [8

U.S.C. § 1252(a)(2)(D)] restores that jurisdiction to the extent that the petition raises

“constitutional claims or questions of law.” See, e.g., Francois v. Gonzales, 448 F.3d

645, 648 (3d Cir. 2006). And, because the REAL ID Act provided that the mandatory 30-

day time period for filing a petition for review, see INA § 242(a)(2)(D) [8 U.S.C.

§ 1252(a)(2)(D)], does not apply to transferred cases, our jurisdiction extends to the

December 2000 order of the BIA.2 See Kamara v. Attorney General, 420 F.3d 202, 210

(3d Cir. 2005).

       Lora-Gonzalez challenges the removal order on the basis that the Immigration and

Naturalization Service and the United States Attorney’s Office colluded to prevent his

release on bail in the underlying criminal proceedings. Because he was denied bail, Lora-

Gonzalez claims that he was “unable to effectively defend against the government’s

allegations and acquire exculpatory evidence.” Importantly, however, an alien may not

collaterally attack in removal proceedings the criminal conviction which serves as the




   2
     We do not have jurisdiction, however, to review Gonzalez-Lora’s contention that the
IJ improperly ordered his removal based on a drug conspiracy conviction that was still
being appealed. Gonzalez-Lora did not raise this claim with the BIA. See INA
§ 242(d)(1) [8 U.S.C. § 1252(d)(1)]; see Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95
(3d Cir. 2003) (holding that statutory exhaustion requirement is jurisdictional and bars
judicial review of unexhausted claims).

                                              3
basis for the removal order. See Al-Najar v. Mukasey, 515 F.3d 708, 714-15 (6 th Cir.

2008) (collecting cases).

       Finally, Gonzalez-Lora claims that he is a United States citizen. The record

indicates that Gonzalez-Lora’s naturalization application was denied in 1992 because he

failed to respond to requests for proof that he had registered with the Selective Service.

We have jurisdiction to review a nationality claim, see INA §§ 242(a)(2)(D), (b)(5)(A),

unless we determine that there is a genuine issue of material fact, in which case the

proceeding is transferred to the District Court, see INA § 242(b)(5)(B). No factual

dispute is presented by Gonzalez-Lora’s claim that he is a national. Although we have

jurisdiction, the citizenship claim is without merit. This Court has held that “for one such

as [Gonzalez-Lora] who is a citizen of another country, nothing less than citizenship will

show ‘permanent allegiance to the United States.’” Salim v. Ashcroft, 350 F.3d 307, 310

(3d Cir. 2003) (per curiam). Here, submission of an incomplete naturalization application

does not demonstrate “permanent allegiance to the United States,” and does not render

Gonzalez-Lora a national.

       For these reasons, we will deny the petition for review.




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