UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-1002

OSCAR SIFREDO ALVARADO,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration 

Appeals.

Submitted: September 15, 2010 Decided: October 21, 2010

Before DUNCAN, DAVIS, and WYNN, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Jaime W. Aparisi, Silver Spring, Maryland, for Petitioner. Tony 

West, Assistant Attorney General, Jamie M. Dowd, Senior 

Litigation Counsel, Andrew N. O’Malley, Office of Immigration 

Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, 

D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Oscar Sifredo Alvarado, a native and citizen of El 

Salvador, petitions for review of a final administrative order 

of expedited removal issued by Immigration and Customs 

Enforcement (“ICE”). For the reasons discussed below, we deny 

the petition for review.

Pursuant to 8 U.S.C. § 1252(a)(2)(C) (2006), we lack 

jurisdiction, except as provided in 8 U.S.C. § 1252(a)(2)(D) 

(2006), to review the final order of removal of an alien who is 

removable for having been convicted of certain enumerated 

crimes, including aggravated felonies. Because Alvarado was 

found removable for having been convicted of an aggravated 

felony, under § 1252(a)(2)(C), we have jurisdiction “to review 

factual determinations that trigger the jurisdiction-stripping 

provision, such as whether [Alvarado] [i]s an alien and whether 

[]he has been convicted of an aggravated felony.” Ramtulla v. 

Ashcroft, 301 F.3d 202, 203 (4th Cir. 2002). Once we confirm

these two factual determinations, then, under 8 U.S.C. 

§ 1252(a)(2)(C), (D), we can only consider “constitutional 

claims or questions of law.” See Mbea v. Gonzales, 482 F.3d 

276, 278 n.1 (4th Cir. 2007). 

Although Alvarado concedes that he is a native and 

citizen of El Salvador, he denies the allegation that he is 

removable as an aggravated felon. Based on our review of the 
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record, we find that Alvarado’s conviction under Maryland law 

for sexual offense in the third degree amounted to “sexual abuse 

of a minor” and was therefore an aggravated felony. See 8 

U.S.C. § 1101(a)(43)(A) (2006) (defining aggravated felony as 

including the murder, rape, or sexual abuse of a minor); United 

States v. Diaz-Ibarra, 522 F.3d 343, 348 (4th Cir. 2008)

(defining “sexual abuse of a minor”).*

Alvarado raises two additional issues which arguably 

can be considered questions of law in his petition for review, 

namely, (1) whether ICE violated his right to counsel by failing 

to consider his response to the Notice of Intent to Issue a 

Final Administrative Order and failing to include this document 

in the administrative record; and (2) whether he was denied a 

bond hearing in violation of his due process rights.

 Accordingly, Alvarado is 

indeed an alien who has been convicted of an aggravated felony, 

and § 1252(a)(2)(C) divests us of jurisdiction over the petition 

for review absent a colorable constitutional claim or question 

of law. 

To succeed on a procedural due process claim, Alvarado 

must demonstrate “(1) that a defect in the proceeding rendered 

 * We reject Alvarado’s argument that his conviction was not 

final for immigration purposes. See 8 U.S.C. § 1101(a)(48)(A) 

(2006) (defining “conviction” as the “formal judgment of guilt 

of the alien entered by a court”).
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it fundamentally unfair and (2) that the defect prejudiced the 

outcome of the case.” Anim v. Mukasey, 535 F.3d 243, 256 (4th 

Cir. 2008); accord Rusu v. INS, 296 F.3d 316, 320-22 (4th Cir. 

2002). We note that the Attorney General ascertained that 

Alvarado’s response was indeed a part of the record before the 

agency and was inadvertently omitted from the administrative 

record. Moreover, even assuming that ICE neglected to consider 

the response, Alvarado cannot demonstrate the requisite 

prejudice as his claim that his conviction was not final for 

immigration purposes is clearly without merit. Finally, we find 

that Alvarado’s contention that he was entitled to a bond 

hearing is outside the scope of the petition for review. See

Joseph v. Holder, 600 F.3d 1235 (9th Cir. 2010) (explaining that 

bond determination hearings and removal hearings are entirely 

separate proceedings).

Accordingly, we deny the petition for review. We 

dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before the 

court and argument would not aid the decisional process.

PETITION DENIED