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


3-7-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2710




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"Argueta v. Atty Gen USA" (2006). 2006 Decisions. Paper 1471.
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                                                     NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT

                              NO. 05-2710
                           ________________

                         MAURICIO ARGUETA,

                                      Petitioner

                                     v.


             *ATTORNEY GENERAL OF THE UNITED STATES

                     *Amended per clerk's order of 06/16/05
                ____________________________________

                   On Petition for Review of an Order
                   of the Board of Immigration Appeals
                         Agency No. A41 623 463

                     Immigration Judge Grace A. Sease
               _______________________________________


                Submitted Under Third Circuit LAR 34.1(a)
                            January 26, 2006

      Before: MCKEE, FUENTES AND NYGAARD, CIRCUIT JUDGES

                          (Filed March 7, 2006)

                       _______________________

                              OPINION
                       _______________________

PER CURIAM
       Mauricio Argueta petitions for review of a an order of the Board of Immigration

Appeals (“BIA”), dismissing his appeal of an Immigration Judge’s (“IJ’s”) final order of

removal. We will deny the petition.

       In August 2004, Argueta, a native and citizen of El Salvador, was charged with

removability based on a 1994 conviction for Criminal Sale of a Controlled Substance in

the Third Degree, in violation of New York State Penal Code § 220.39. The Notice to

Appear charged that this conviction was an aggravated felony and a controlled substance

violation. Additional charges of removability were entered on October 19, 2004, based

on a 2001 conviction for criminal possession of a weapon in the 4 th degree in violation of

New York State Penal Code § 265.01; and a 2003 conviction for attempted criminal

possession of a controlled substance in the 5 th degree in violation of New York State

Penal Code § 110-220.06(5). The notice charged that the firearms conviction rendered

Argueta removable pursuant to section 237(a)(2)(C) of the Immigration and Nationality

Act (“INA”) [8 U.S.C. § 1227(a)(2)(C)], and that Argueta was also removable pursuant to

INA § 237(a)(2)(A)(ii) [8 U.S.C. § 1227(a)(2)(A)(ii)] because he had been convicted of

two crimes of moral turpitude.

       Argueta then sought to simultaneously apply for a waiver of removal pursuant to

former INA § 212(c) and for cancellation of removal pursuant to INA § 240A [8 U.S.C.

§ 1229b]. An IJ denied relief, finding that even if he received a § 212(c) waiver of

removal for his 1994 conviction, he would be statutorily ineligible for cancellation of



                                             2
removal on the basis of his later convictions because his 1994 aggravated felony

conviction would remain. Argueta timely appealed to the BIA, but failed to file a brief.

The BIA dismissed the appeal for failure to file a brief.

       In his brief here, Argueta essentially makes four arguments: (1) his 1994

conviction does not constitute an aggravated felony; (2) his 2003 conviction is on direct

appeal; (3) he received ineffective assistance of counsel when counsel failed to timely file

a brief with the BIA; and (4) his prolonged detention is unconstitutional.

       As the Government notes, pursuant to 8 U.S.C. § 1252(d)(1), this Court may only

review a final order of removal if “the alien has exhausted all administrative remedies

available to the alien as of right.” Where the alien has failed to file a brief with the BIA,

we may still find that he has exhausted administrative remedies if his Notice of Appeal to

the BIA was sufficient to place the BIA on notice of what was at issue. Bhiski v.

Ashcroft, 373 F.3d 363, 368-69 (3d Cir. 2004). Argueta did not present his argument that

his 1994 conviction was not an aggravated felony at any level of the administrative

proceedings. Thus, we are without jurisdiction to review that claim.1




   1
    If we had jurisdiction, however, we would find the argument without merit.
Argueta seems to argue that his conviction was only for possession, but the Certificate of
Disposition included in the record clearly indicates that the conviction was for “Criminal
Sale of a Controlled Substance, 3d degree.” A.R. 135 (emphasis added). Indeed, a
document Argueta included in his appendix to show the date of his 1994 conviction also
notes that it is for “Criminal Sale of a Controlled Substance 3d Degree.” Appendix, Exh.
A, second page.

                                              3
       Argueta next argues that his 2003 conviction is on direct appeal.2 Even if this is so

(it is not clear from the record whether his appeal is a collateral or direct appeal), his 2001

firearms conviction remains. He cannot receive cancellation of removal for his 2001

conviction. Cancellation is available to an alien, who, among other things, “has not been

convicted of any aggravated felony.” INA § 240A(a). As the IJ correctly noted, even if

Argueta had received § 212(c) relief for his 1994 conviction, a waiver of removal does

not make the conviction “disappear,” and he would remain convicted of an aggravated

felony. Rodriguez-Munoz v. Gonzales, 419 F.3d 245, 248 (3d Cir. 2005).

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

Challenges to post-removal order detention should be raised in a 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

Argueta 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).

   2
     When a conviction has been entered and direct appeal has been exhausted or waived
the conviction is final for deportation purposes. Post-conviction motions do not affect the
finality of the conviction. Aguilera-Enriguez v. INS, 516 F.2d 565, 570-71 (6 th Cir.
1975).

                                              4
Accordingly, for the reasons stated above we will deny the petition for review.




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