* Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIRCUIT

RULE 47.5.4.

1 “Whenever a civil action is filed . . . [and] there is a

want of jurisdiction, the court shall, if it is in the interest

of justice, transfer such action or appeal to any other such

court in which the action or appeal could have been brought at

the time it was filed.”

1

United States Court of Appeals

Fifth Circuit

FILED

May 4, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 06-60048

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ROBERTO ANTONIO GONDOLA,

Petitioner,

v.

ALBERTO R GONZALES, U S ATTORNEY GENERAL,

Respondent.

-----------------------

Petition for Review of an Order of the

Board of Immigration Appeals

(A21 566 413)

------------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

Although the district court erred in transferring this case

pursuant to 8 U.S.C. § 1252 note (2005) (Transfer of Cases),

transfer is proper under 28 U.S.C. § 1631.1

Because Gondola has been convicted in Texas state court of
2 On May 22, 1992, Gondola, a native of Panama, was

convicted of possessing and delivering at least 400 grams of

cocaine in violation of Texas Health and Safety Code § 481.114.

He was sentenced to forty years of imprisonment.

3 8 U.S.C. § 1440 is entitled “Naturalization through

active-duty service in the Armed Forces during World War I, World

War II, Korean hostilities, Vietnam hostilities, or other periods

of military hostilities.”

2

possessing and delivering at least 400 grams of cocaine,2 8

U.S.C. § 1252(a)(2)(C) limits this court’s jurisdiction to review

Gondola’s petition. “[W]e retain jurisdiction to determine

jurisdictional facts. Specifically, to determine whether we are

precluded from reviewing this petition, we must inquire, first,

whether [the Petitioner] is an alien and then, if he is, whether

he is removable for having committed a crime covered by 8 U.S.C.

§ 1252(a)(2)(C).” Balogun v. Ashcroft, 270 F.3d 274, 278 (5th

Cir. 2001). 

Gondola served in the United States Marine Corps in Vietnam. 

As a result, he was eligible for naturalization under 8 U.S.C. §

1440.3 Gondola filed a Petition for Naturalization on March 22,

1985 and argues that, but for the Government’s error in sending

his naturalization papers to an incorrect address, he would have

been a naturalized citizen prior to his 1992 conviction. The

record shows that Gondola failed to appear for his final hearing

Swearing In Ceremony because notice of the hearing was sent to

one of Gondola’s previous addresses, even though Gondola’s

current address was on file.
4 “[W]e construe the submissions of pro se litigants broadly

in deference to their status.” Royal v. Tombone, 141 F.3d 596,

599 (5th Cir. 1998). 

5 Compare Williams-Igwonobe v. Gonzales, 437 F.3d 453 (5th

Cir. 2006) (Petitioner, who did not receive actual notice of his

deportation hearing because notice was sent to his old address,

could reopen the proceedings for “reasonable cause.”).

6 Gondola does not dispute that he committed an offense

covered in 8 U.S.C. § 1252(a)(2)(C).

7 See 8 U.S.C. § 1252(a)(2)(d). 

3

Construing Gondola’s argument broadly,4 he appears to argue

that he is not an alien who is removable by reason of having

committed an offense covered in 8 U.S.C. § 1252(a)(2)(C). 

Despite the Government’s error in mailing notice to the wrong

address, 8 U.S.C. § 1448 requires that an applicant for

naturalization take an oath of renunciation and allegiance in

order to be admitted to citizenship.5 Gondola admits he took no

such oath, albeit through no fault of his own. Gondola is not a

naturalized citizen, and is therefore an alien who is removable

by virtue of his conviction for an aggravated felony.6 As

Gondola does not raise constitutional claims or other questions

of law,7 we lack jurisdiction to review his petition further. 

For the reasons stated above the respondent’s motion to

dismiss is GRANTED. Gondola’s motion for stay of deportation

pending review is DENIED AS MOOT.