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


10-3-2008

Aguilera-Ramos v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3704




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 07-3704
                                     ___________

                            EDWIN AGUILERA-RAMOS,
                                          Petitioner

                                          v.

                 ATTORNEY GENERAL OF THE UNITED STATES
                    ____________________________________

                         On Petition for Review of an Order
                         of the Board of Immigration Appeals
                               Agency No. A97 916 987
                        Immigration Judge: Andrew R. Arthur
                     ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  October 2, 2008

          Before: RENDELL, JORDAN and VAN ANTWERPEN, Circuit Judges

                           (Opinion filed: October 3, 2008 )
                                    ___________

                                      OPINION
                                     ___________

PER CURIAM

      Edwin Aguilera-Ramos petitions for review of an order of the Board of

Immigration Appeals (BIA or Board). For the reasons that follow, we will deny the

appeal.
       Aguilera-Ramos is a native and citizen of Bolivia. He came to the United States in

1998 on a visitor’s visa and stayed longer than permitted. He was picked up by a Border

Patrol agent at a bus stop, and he was served with a Notice to Appear in February 2007

charging him with the overstay.

       In removal proceedings, Aguilera-Ramos’s attorney indicated that he would

potentially be eligible for adjustment of status, as his permanent resident daughter was

about to apply for naturalization. Aguilera-Ramos also applied for voluntary departure.

On March 19, 2007, the Immigration Judge (IJ) found him removable but granted

voluntary departure.

       Aguilera-Ramos appealed to the BIA, which dismissed the appeal on August 23,

2007 on the ground that Aguilera-Ramos had waived appeal and had failed to argue that

his decision to waive appeal was not knowing and intelligent. Aguilera-Ramos filed a

timely petition for review in this Court.

       We have jurisdiction to review a final order of removal pursuant to 8 U.S.C.

§ 1252. However, our jurisdiction extends only to the issue of whether the BIA properly

dismissed Aguilera-Ramos’s appeal. We hold that the BIA properly dismissed the appeal.

The Immigration Judge’s (IJ’s) order shows that appeal was waived “by both” parties.

A.R. 17. While Aguilera-Ramos did not expressly “waive” his appeal, he had no reason




                                             2
to appeal, as the IJ had granted him the only relief he had requested.1 Aguilera-Ramos’s

notice of appeal to the Board does not challenge the notation on the IJ’s decision that he

had waived his appeal, nor does it indicate that any such waiver was anything but

knowing and voluntary. A.R. 5-6. Instead, the notice of appeal attempted to raise new

issues that had not been raised before the IJ, which the BIA lacked jurisdiction to

consider. Thus, the BIA properly dismissed the appeal.2

       To the extent Aguilera-Ramos argues that his due process rights were violated by

the proceedings before the IJ, we reject such an argument. Aguilera-Ramos seems to

suggest that the Agency should have considered his claim under the CAT, but the record

does not show that he gave any indication of a fear of returning to Bolivia in proceedings

before the IJ. Aguilera-Ramos also seems to indicate that his rights were violated

because no translator was available in hearings, but the record indicates that a translator

was used at the hearings. A.R. 25, 55. Further, to the extent Aguilera-Ramos argues that

he was denied effective assistance of counsel, he did not properly raise such allegations

before the Agency. A petitioner must “raise and exhaust his . . . remedies as to each


   1
     Aguilera-Ramos had conceded that he was removable, and the only relief he
requested was voluntary departure, which the IJ granted. Thus, the IJ would have had no
reason to ask whether he wished to appeal.
   2
     Aguilera-Ramos’s notice argued that it was unfair to send him back to Bolivia, and
asked that the Board remand for determination of whether relief was available under the
United Nations Convention Against Torture (CAT). Id. Although the Board did not
address this aspect of the notice, according to Aguilera-Ramos, he later filed a motion to
reopen which was denied. As noted above, however, our jurisdiction extends only to
review of the August 23, 2007 decision.

                                              3
claim or ground for relief if he . . . is to preserve the right of judicial review of that

claim.” Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003).

       For the foregoing reasons, we will deny the petition for review.3




   3
     Aguilera-Ramos has also filed a “Motion for Examination of Decision 1-11-2008
Denying U.S. Benefits.” We do not have jurisdiction to review a BIA decision outside
the context of a timely-filed petition for review. To the extent the motion is construed as
a motion to remand to the BIA, we deny the motion.

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