2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-3-2008

Aguilera-Ramos v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3704

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 07-3704

___________

EDWIN AGUILERA-RAMOS,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES

____________________________________

On Petition for Review of an Order 

of the Board of Immigration Appeals

Agency No. A97 916 987

Immigration Judge: Andrew R. Arthur

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

October 2, 2008

Before: RENDELL, JORDAN and VAN ANTWERPEN, Circuit Judges

(Opinion filed: October 3, 2008 )

___________

OPINION

___________

PER CURIAM

Edwin Aguilera-Ramos petitions for review of an order of the Board of

Immigration Appeals (BIA or Board). For the reasons that follow, we will deny the

appeal.
2

Aguilera-Ramos is a native and citizen of Bolivia. He came to the United States in

1998 on a visitor’s visa and stayed longer than permitted. He was picked up by a Border

Patrol agent at a bus stop, and he was served with a Notice to Appear in February 2007

charging him with the overstay.

In removal proceedings, Aguilera-Ramos’s attorney indicated that he would

potentially be eligible for adjustment of status, as his permanent resident daughter was

about to apply for naturalization. Aguilera-Ramos also applied for voluntary departure. 

On March 19, 2007, the Immigration Judge (IJ) found him removable but granted

voluntary departure. 

Aguilera-Ramos appealed to the BIA, which dismissed the appeal on August 23,

2007 on the ground that Aguilera-Ramos had waived appeal and had failed to argue that

his decision to waive appeal was not knowing and intelligent. Aguilera-Ramos filed a

timely petition for review in this Court.

We have jurisdiction to review a final order of removal pursuant to 8 U.S.C.

§ 1252. However, our jurisdiction extends only to the issue of whether the BIA properly

dismissed Aguilera-Ramos’s appeal. We hold that the BIA properly dismissed the appeal. 

The Immigration Judge’s (IJ’s) order shows that appeal was waived “by both” parties. 

A.R. 17. While Aguilera-Ramos did not expressly “waive” his appeal, he had no reason
 Aguilera-Ramos had conceded that he was removable, and the only relief he 1

requested was voluntary departure, which the IJ granted. Thus, the IJ would have had no

reason to ask whether he wished to appeal.

 Aguilera-Ramos’s notice argued that it was unfair to send him back to Bolivia, and 2

asked that the Board remand for determination of whether relief was available under the

United Nations Convention Against Torture (CAT). Id. Although the Board did not

address this aspect of the notice, according to Aguilera-Ramos, he later filed a motion to

reopen which was denied. As noted above, however, our jurisdiction extends only to

review of the August 23, 2007 decision.

3

to appeal, as the IJ had granted him the only relief he had requested. Aguilera-Ramos’s 1

notice of appeal to the Board does not challenge the notation on the IJ’s decision that he

had waived his appeal, nor does it indicate that any such waiver was anything but

knowing and voluntary. A.R. 5-6. Instead, the notice of appeal attempted to raise new

issues that had not been raised before the IJ, which the BIA lacked jurisdiction to

consider. Thus, the BIA properly dismissed the appeal.2

To the extent Aguilera-Ramos argues that his due process rights were violated by

the proceedings before the IJ, we reject such an argument. Aguilera-Ramos seems to

suggest that the Agency should have considered his claim under the CAT, but the record

does not show that he gave any indication of a fear of returning to Bolivia in proceedings

before the IJ. Aguilera-Ramos also seems to indicate that his rights were violated

because no translator was available in hearings, but the record indicates that a translator

was used at the hearings. A.R. 25, 55. Further, to the extent Aguilera-Ramos argues that

he was denied effective assistance of counsel, he did not properly raise such allegations

before the Agency. A petitioner must “raise and exhaust his . . . remedies as to each
 Aguilera-Ramos has also filed a “Motion for Examination of Decision 1-11-2008 3

Denying U.S. Benefits.” We do not have jurisdiction to review a BIA decision outside

the context of a timely-filed petition for review. To the extent the motion is construed as

a motion to remand to the BIA, we deny the motion.

4

claim or ground for relief if he . . . is to preserve the right of judicial review of that

claim.” Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003). 

For the foregoing reasons, we will deny the petition for review.3