2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-11-2011

Maireni Roman-Fernandez v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-1850

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-1850

___________

MAIRENI SIGFRIDO ROMAN-FERNANDEZ,

AKA Maireni Roman,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A018-094-061)

Immigration Judge: Honorable Walter Durling

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

October 3, 2011

Before: AMBRO, HARDIMAN and VAN ANTWERPEN, Circuit Judges

(Opinion filed: October 11, 2011)

___________

OPINION

___________

PER CURIAM

Petitioner Maireni Roman-Fernandez, proceeding pro se, seeks review of a final 

order of removal. For the reasons that follow, we will deny his petition for review.
2

I.

Roman-Fernandez, a native and citizen of the Dominican Republic, became a 

lawful permanent resident of the United States in 1968. In September 2009, he was 

convicted in federal district court of one count of conspiracy to distribute and possess 

with intent to distribute cocaine (21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)), and was 

sentenced to 108 months of incarceration.

1

 He was then charged with removability under 

8 U.S.C. § 1227(a)(2)(A)(iii) (convicted of an aggravated felony as defined by § 

1101(a)(43)(B) and (U)) and § 1227(a)(2)(B)(i) (convicted of an offense relating to a 

controlled substance, other than than a single offense involving possession of 30 grams or 

less for personal use). 

In October 2010, Roman-Fernandez requested cancellation of removal. The IJ

denied the motion after determining that Roman-Fernandez was statutorily ineligible for 

cancellation of removal because he has been convicted of an aggravated felony and an 

offense relating to a controlled substance.2 The Board of Immigration Appeals (“BIA”) 

agreed, and dismissed his appeal. Roman-Fernandez filed a timely notice of appeal.

II.

 

1

The IJ stated that Roman-Fernandez was also convicted in 2001 in New York 

state court of possession of a controlled substance and sentenced to 1 day 

imprisonment. The BIA, however, noted that the state court record showed no 

conviction for 2001. He was, however, convicted for attempted sale of a 

controlled substance in 1994. In any event, as the BIA pointed out and as this 

opinion will show, the 2009 conviction is sufficient to support the charges in the 

Notice to Appear.

2

The IJ’s initial denial did not include a separate oral or written decision setting 

for the reasons for the denial. In December 2010, the BIA returned the record to 
3

Because Roman-Fernandez has been convicted of an aggravated felony, a 

determination he does not challenge, our review of the denial of cancellation of removal

is limited to constitutional claims or questions of law. See 8 U.S.C. § 1252(a)(2)(C) & 

(D); Pierre v. Att’y Gen., 528 F.3d 180, 184 (3d Cir. 2008) (en banc). We review the 

BIA’s legal conclusions de novo. Kaplun v. Att’y Gen., 602 F.3d 260, 265 (3d Cir.

2010); Pierre, 528 F.3d at 184.

III.

Roman-Fernandez first argues that he is not an “alien” subject to removal under 8 

U.S.C. § 1227 because he is a “national of the United States” who “owes permanent 

allegiance to the United States.” See 8 U.S.C. § 1101(a)(22). He argues that by applying 

for citizenship and indicating his willingness to take the Oath of Allegiance to the United 

States, he demonstrated his allegiance to the country. This Court has already rejected this 

argument in Salim v. Ashcroft, 350 F.3d 307, 310 (3d Cir. 2003), in which we held that 

“nothing less than citizenship will show permanent allegiance to the United States.” 

Roman-Fernandez’s argument that we should overrule Salim is unavailing.

Roman-Fernandez next claims that the statutes governing the removal of lawful 

permanent residents result in impermissible bills of attainder. Specifically, he challenges 

42 U.S.C. § 402(n), which provides that certain removed aliens are ineligible to receive 

Social Security retirement benefits. This claim is foreclosed by Flemming v. Nestor, 363 

U.S. 603, 612-21 (1960). Deportation statutes are civil in nature and non-punitive in the 

constitutional sense, INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984); Perez v. 

 

the IJ for a full decision.
4

Elwood, 294 F.3d 552, 557 (3d Cir. 2002), a fact that prevents Roman-Fernandez from 

showing that the statute qualifies as a bill of attainder. See United States v. O’Brien, 391 

U.S. 367, 384 n.30 (1968) (listing “punishment” as one of three “definitional elements” 

of legislation that constitutes a bill of attainder).

IV.

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