2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-9-2008

Rojas-Paredes v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 07-1402

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Recommended Citation

"Rojas-Paredes v. Atty Gen USA" (2008). 2008 Decisions. Paper 944.

http://digitalcommons.law.villanova.edu/thirdcircuit_2008/944
Honorable Jane A. Restani, Chief Judge of the United *

States Court of International Trade, sitting by designation.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 07-1402

_______________

RAMON ARMANDO ROJAS PAREDES,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

_______________

On Petition for Review of an Order of

 the Board of Immigration Appeals

(No. A41-303-558)

Immigration Judge: Hon. Alberto J. Riefkohl

_______________

Submitted Under Third Circuit LAR 34.1(a)

May 9, 2008

_______________

Before: BARRY and STAPLETON, Circuit Judges, and 

RESTANI , Judge *

(Opinion filed: June 9, 2008)
 The caption of the IJ’s removal order erroneously 1

indicates that the government charged petitioner with removability

2

John J. Garzon, Esq.

Suite 204

46-12 Queens Boulevard

Sunnyside, NY 11104-0000

Counsel for Petitioner

Richard M. Evans, Esq.

Paul Fiorino, Esq. 

Michelle G. Latour, Esq.

Michele Y.F. Sarko, Esq.

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044-0000

Counsel for Respondent

______________

OPINION OF THE COURT

_______________

RESTANI, Judge.

 Petitioner Ramon Armando Rojas Paredes, a native and

citizen of the Dominican Republic, petitions for review of a final

order of the Board of Immigration Appeals (“BIA”) dismissing

his appeal from an Immigration Judge’s (“IJ”) removal order. 

The IJ concluded that two New Jersey state convictions against

petitioner constituted offenses for which petitioner may be

deported under § 237(a)(2) of the Immigration and Nationality

Act (“INA”). 8 U.S.C. § 1227(a)(2)(A)(iii), (B)(i). Petitioner 1
under INA § 237(a)(2)(A)(i). (See App. for Pet’r at 4a.)

 The record is unclear as to when, exactly, petitioner filed 2

the petitions for post-conviction relief. The only evidence of

petitioner’s effort to obtain such relief is a letter from Criminal

Legal Research Inc, dated August 27, 2006, stating that the

organization “ha[d] been retained to file 2 motions for Coram

Nobis” and that “both motions should [be] ready within 15 days.”

(App. for Pet’r at 164a.) The record also suggests that the IJ was

not sure as to the status of the petitions at the time he rendered his

decision on August 29, as he noted that the post-conviction relief

“appears to be pending or appears to be a plan by . . . Criminal

Legal Research, Inc.” (Id. at 6a.) Nonetheless, in his Notice of

Appeal to the BIA, dated August 31 and filed on September 1,

petitioner claimed that he was “waiting for decision on [his] motion

for coram nobis at the State Court of New Jersey.” (Id. at 75a,

77a.)

3

did not appeal the state convictions but, rather, filed petitions for

writs of error coram nobis to challenge them. On appeal to the 2

BIA, petitioner argued that the IJ’s decision of removal was

capricious and erroneous because his challenges to the state

convictions were still pending. The BIA affirmed the IJ’s

decision, concluding that the state convictions were final for

immigration removal purposes. Petitioner argues that the BIA

erred and violated his due process rights by basing its order on

the state convictions, because the convictions were being

appealed and therefore were not yet final.

Although 8 U.S.C. § 1252(a)(2)(C) provides that “no

court shall have jurisdiction to review any final order of removal

against an alien who is removable by reason of having

committed [certain] criminal offense[s],” 8 U.S.C.

§ 1252(a)(2)(D) grants courts jurisdiction to review

“constitutional claims or questions of law raised upon a petition

for review” of final removal orders. See also Papageorgiou v.

Gonzales, 413 F.3d 356, 357–58 (3d Cir. 2005). We review

questions of law de novo. Caroleo v. Gonzales, 476 F.3d 158,

162 (3d Cir. 2007).
 Petitioner filed a Motion to Reconsider and Reopen the 3

BIA decision, arguing that Lopez nullified the basis for the

removal order because he “was convicted of a state drug felony that

would not be punishable as a felony under federal law.” (App. for

Pet’r at 45a.) Nonetheless, because petitioner was removed after

filing the Motion, it was withdrawn pursuant to 8 C.F.R.

§1003.2(d).

4

“[A] conviction does not attain a sufficient degree of

finality for immigration purposes until direct appellate review of

the conviction has been exhausted or waived.” Matter of Ozkok,

19 I. & N. Dec. 546, 552 n.7 (BIA 1988) (citing Marino v. INS,

537 F.2d 686 (2d Cir. 1976); Aguilera-Enriquez v. INS, 516

F.2d 565 (6th Cir. 1975); Will v. INS, 447 F.2d 529 (7th Cir.

1971)), superceded by statute on other grounds. Here,

petitioner’s time to directly appeal his convictions had expired,

and a petition for a writ of error coram nobis is not a direct

appeal of, but rather a collateral attack on, a conviction. See

United States v. Gross, 614 F.2d 365, 368 (3d Cir. 1980). 

We have not considered previously the issue of whether

the pendency of post-conviction motions or other forms of

collateral attack negates the finality of convictions for

immigration removal purposes. Our sister circuits that have

addressed the issue, however, have concluded that such

pendency does not vitiate finality, unless and until the

convictions are overturned as a result of the collateral motions. 

See United States v. Garcia-Echaverria, 374 F.3d 440, 445–46

(6th Cir. 2004) (citing Aguilera-Enriquez, 516 F.2d at 570–71);

Grageda v. INS, 12 F.3d 919, 921 (9th Cir. 1993); Okabe v. INS,

671 F.2d 863, 865 (5th Cir. 1982); Will, 447 F.2d at 533. We

find these decisions well-reasoned, see no reason to deviate from

this view, and adopt it as the law in this Circuit.

As to petitioner’s argument that, under Lopez v.

Gonzales, 549 U.S. 47 (2006), “a state offense may not be held

punishable as a felony under federal law,” (Br. for Pet’r at 20),

petitioner did not raise it before the BIA rendered its decision.3

See 8 U.S.C. § 1252(d)(1) (exhaustion of administrative
5

remedies mandatory and jurisdictional); see also Bonhometre v.

Gonzales, 414 F.3d 442, 447 (3d Cir. 2005) (“To exhaust a claim

before the agency, an applicant must first raise the issue before

the BIA or IJ, so as to give it the opportunity to resolve a

controversy or correct its own errors before judicial

intervention.” (internal quotations and citation omitted)). In any

event, petitioner misapprehended the holding in Lopez. There,

the Supreme Court reversed a decision of removal not because

state offenses were not punishable under federal law, but

because the state felony conviction there constituted only a

misdemeanor under federal law. Lopez, 549 U.S. at 633.

For the foregoing reasons, the petition for review will be

DENIED.