2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-30-2013

Manuel Bermudez v. Attorney General United

States

Precedential or Non-Precedential: Non-Precedential

Docket No. 13-1313

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 13-1313

___________

MANUEL J. BERMUDEZ,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A092-791-605)

Immigration Judge: Honorable Leo A. Finston

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

May 24, 2013

Before: RENDELL, FISHER and GARTH, Circuit Judges

(Opinion filed May 30, 2013)

___________

OPINION

___________

PER CURIAM

Manuel J. Bermudez petitions for review of the Board of Immigration Appeals’ 

(“BIA” or “Board”) dismissal of his appeal. For the following reasons, we will dismiss 

in part and deny in part the petition for review.
2

I.

Bermudez, a citizen of Nicaragua, entered the United States in 1970 and was 

granted lawful permanent resident status in 1989. In 2004, he was convicted of two 

counts of sexual contact with a minor, five counts of attempting to lure or entice a minor 

into a motor vehicle, and attempted bail jumping, in violation of N.J. Stat. Ann. 

§§ 2C:13-6, 2C:14-3B, and 2C:29-7, and sentenced to four years’ incarceration. 

Bermudez was later served with a Notice to Appear charging him with being removable 

under 8 U.S.C. § 1227(a)(2)(A)(iii) on the basis of an aggravated felony conviction as 

defined by INA § 101(a)(43)(A) & (T).

At a hearing before the Immigration Judge (“IJ”), Bermudez conceded the factual 

allegations contained in the Notice to Appear. The IJ found him removable as charged 

based upon his admissions and the records of conviction and ordered him removed to 

Nicaragua. Bermudez asked for asylum, withholding of removal, and deferral of removal 

under the Convention Against Torture (“CAT”). The IJ determined that Bermudez’s 

convictions rendered him ineligible for asylum and withholding of removal and denied 

his request for CAT relief because he had not demonstrated that he would likely face 

torture upon his return to Nicaragua.

On appeal to the BIA, Bermudez asserted that his service in the United States 

military resulted in his acquisition of United States citizenship; however, the Board noted 

that he had never submitted an application for naturalization and did not, in any event, 
3

establish that he met the requirements of 8 U.S.C. § 1440(a).1 The BIA also noted that it 

lacked the authority to go behind the record of conviction to determine Bermudez’s guilt 

or innocence and that his pending collateral attack on his convictions in state court did 

not negate the finality of his convictions for immigration purposes. Finally, the Board 

determined that Bermudez had not established any constitutional violations. This petition 

for review followed.

II.

Generally, we lack jurisdiction to review a final order of removal against an alien, 

like Bermudez, who is removable for having been convicted of an aggravated felony. 8 

U.S.C. § 1252(a)(2)(C). We retain jurisdiction, however, to review any constitutional or 

legal questions raised in his petition for review. See 8 U.S.C. § 1252(a)(2)(D); Cruz v. 

Att’y Gen., 452 F.3d 240, 246-47 (3d Cir. 2006).

III.

As an initial matter, Bermudez has not challenged the Board’s dismissal of his 

appeal from the IJ’s determination that his aggravated felony convictions rendered him 

ineligible for asylum and withholding of removal and the IJ’s denial of CAT relief. As a 

 

1

This statute allows for naturalization through active-duty service in the Armed 

Forces during World War I, World War II, the Korean hostilities, or other periods of 

military hostilities if certain requirements are established.
4

result, these issues are waived.2 See Bradley v. Att’y Gen., 603 F.3d 235, 243 n.8 (3d 

Cir. 2010) (arguments not raised in opening brief are waived). Nevertheless, the BIA 

plausibly determined that Bermudez was not eligible for deferral of removal under the 

CAT because he did not present evidence indicating that it was more likely than not that 

he would face torture upon his return to Nicaragua. See 8 C.F.R. § 1208.16(c)(2).

In his brief here, Bermudez first asserts that he was wrongfully accused of the 

various crimes for which he was convicted. Collateral attacks of this kind are not 

permitted in removal proceedings. See Drakes v. I.N.S., 330 F.3d 600, 601 (3d Cir. 

2003). Likewise, his desire to seek post-conviction relief is immaterial, as his 

convictions remain final for immigration purposes despite any pending collateral attack. 

Paredes v. Att’y Gen., 528 F.3d 196, 198-90 (3d Cir. 2008). Bermudez further alleges 

that his First, Fourth, Fifth, Sixth, and Eighth Amendment rights have been violated. 

However, he has not provided any argument to support his claims, and we have not 

discerned any such violations from the record.

As to Bermudez’s claim that he acquired citizenship by way of his service in the 

United States military, the Board plausibly concluded that Bermudez had not 

demonstrated that he had ever filed an application for naturalization or that he even met 

 

2

In any event, we perceive no error in the IJ’s conclusions. See 8 U.S.C. 

§§ 1101(a)(43)(A) & (T), 1158(b)(2)(B)(i); Chong v. Dist. Dir., 264 F.3d 378, 388 (3d 

Cir. 2001) (describing the individualized assessment necessary to determine whether an 

alien’s conviction was for a “particularly serious crime,” thereby making him ineligible 

for withholding of removal).
5

the requirements in 8 U.S.C. § 1440(a) for naturalization through active-duty service. 

Nor do we think the BIA erred in failing to terminate Bermudez’s removal proceedings 

so that he could now apply for naturalization. See Nolan v. Holmes, 334 F.3d 189, 190 

(2d Cir. 2003) (construing a claim like Bermudez’s in this way). To obtain naturalization 

now, Bermudez would need to establish good moral character, and his conviction for an 

aggravated felony precludes that. O’Sullivan v. USCIS, 453 F.3d 809, 817 (7th Cir. 

2006); Nolan, 334 F.3d at 202.

In his brief, Bermudez appears to assert that his removal would work a hardship 

on his family. He did not exhaust this claim before the BIA, and we therefore lack 

jurisdiction to consider it. See 8 U.S.C. § 1252(d)(1); Castro v. Att’y Gen., 671 f.3d 356, 

365 (3d Cir. 2012). Nevertheless, we would lack jurisdiction to consider any 

discretionary decision, including any “exceptional and extremely unusual” hardship 

determination. See 8 U.S.C. § 1252(a)(2)(B)(i); Patel v. Att’y Gen., 619 F.3d 230, 232 

(3d Cir. 2010).

IV.

For the foregoing reasons, we will dismiss the petition for review in part and deny 

it in part.