                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-4-2004

Fernandez-Vergara v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-4399




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"Fernandez-Vergara v. Atty Gen USA" (2004). 2004 Decisions. Paper 617.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/617


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                                                                  NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 02-4399
                                    ____________

                         SANTIAGO FERNANDEZ-VERGARA,

                                                     Petitioner

                                          v.

                           JOHN ASHCROFT,
                ATTORNEY GENERAL OF THE UNITED STATES,

                                                         Respondent
                                    ____________

                     On Petition for Review from an Order of the
                           Board of Immigration Appeals
                              (Board No. A70-683-693)
                                    ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   May 28, 2004

       Before: SCIRICA, Chief Judge, FISHER and ALARCÓN,* Circuit Judges.

                                 (Filed: June 4, 2004)
                                    ____________

                             OPINION OF THE COURT
                                  ____________
FISHER, Circuit Judge.



      *
        The Honorable Arthur L. Alarcón, Senior Judge, United States Court of Appeals
for the Ninth Circuit, sitting by designation.
       Petitioner Santiago Fernandez-Vergara, a citizen of Peru, seeks review of the order

of the Board of Immigration Appeals (“BIA”) summarily affirming an immigration

judge’s denial of his applications for asylum under 8 U.S.C. § 1158(a) and for

withholding of deportation under 8 U.S.C. § 1231(b)(3).

       Petitioner argues that his eligibility should be measured by conditions as they

existed in Peru when he filed his asylum application in 1993 and not in 2001 when his

hearing took place. Petitioner cites no authority for this proposition and we are aware of

none. The immigration judge’s conclusions that conditions in Peru had changed for the

better and that the applications should be denied were supported by substantial evidence.

Petitioner’s related argument – that delay in providing a hearing should estop the

government – is similarly misplaced. That the government erroneously sent several

letters to Petitioner’s old address is not affirmative misconduct and does not estop

enforcement of the immigration laws. INS v. Miranda, 459 U.S. 14, 18 (1982).

       Petitioner also attacks the BIA’s summary affirmance procedures as violative of

due process. This argument has been foreclosed by Dia v. Ashcroft, 353 F.3d 228 (3d

Cir. 2003), where we concluded that “the streamlining regulations do not violate the Due

Process Clause of the Constitution.” Id. at 238.

       As Petitioner’s remaining arguments are without merit, the petition for review will

be DISMISSED.

________________________



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