2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-5-2011

Jose Andujar v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-4789

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"Jose Andujar v. Atty Gen USA" (2011). 2011 Decisions. Paper 937.

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1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-4789

___________

JOSE JULIO ANDUJAR,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A034-040-212)

Immigration Judge: Jesus Clemente

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

July 1, 2011

Before: BARRY, JORDAN and GARTH, Circuit Judges

(Opinion filed July 5, 2011)

_________

OPINION

_________

PER CURIAM
2

Jose Andujar, a citizen of the Dominican Republic, petitions for review of a 

decision from the Board of Immigration Appeals (BIA) that: found him barred from 

seeking asylum and withholding of removal by virtue of a federal drug conviction; found 

him ineligible for deferral of removal under the Convention Against Torture (CAT);

denied his motion to remand; and ordered him removed. For the reasons that follow, we 

will deny the petition for review. 

I.

Andujar was admitted to the United States as a lawful permanent resident in the 

mid-1970s. Three decades later, he pleaded guilty in federal court to conspiracy to 

manufacture, possess and distribute cocaine hydrochloride, and he was sentenced to 

seventy-eight months in prison. Based on that conviction, the Government charged 

Andujar with being removable under, inter alia, 8 U.S.C §§ 1227(a)(2)(A)(iii) (aliens 

convicted of aggravated felonies are removable) and 1227(a)(2)(B)(i) (aliens convicted of 

controlled substance violations are removable). (AR 564.) Andujar conceded 

removability and filed defensive applications for asylum, withholding of removal and 

CAT protection, claiming a fear of persecution and torture at the hands of his drug 

trafficking co-conspirators.

An Immigration Judge in York, Pennsylvania, denied Andujar‟s applications for 

relief, and the BIA dismissed his appeal. The BIA noted that Andujar had “not 
3

challenge[d] the Immigration Judge‟s determination that his conviction constitutes an 

aggravated felony, thus precluding asylum.” (AR 3.) The BIA determined that “because 

[Andujar‟s] conviction for an aggravated felony resulted in a sentence of 78 months . . . 

his conviction is automatically a particularly serious crime per statute” (AR 3), thus 

precluding withholding of removal. And it “agree[d] with the Immigration Judge that 

[Andujar] has not established that it is more likely than not that he would be tortured by 

anyone - either private actors or government officials - upon returning to the Dominican 

Republic.” (AR 4.) Regarding Andujar‟s claim on appeal that he is a non-removable

United States national, the BIA found that Andujar conceded alienage before the IJ and 

that his new allegation—that he gave an “oath of allegiance” to the United States—was 

insufficient to prove nationality under Third Circuit precedent. Finally, the BIA 

construed as a motion to remand proceedings new evidence submitted by Andujar on 

appeal, and denied the motion because the evidence was “cumulative of extensive 

evidence already of record concerning drug-related violence in the Dominican Republic.” 

(AR 5.)

II.

We generally have jurisdiction under 8 U.S.C. § 1252(a)(1) to review final orders 

of removal. Where the BIA issues its own decision, we limit our review to the 

administrative record and the decision of the BIA. See Demandstein v. Att‟y Gen., ---
4

F.3d ---, 2011 WL 652751, at *2 (3d Cir. Feb. 24, 2011, No. 10-1230). Because Andujar 

was found removable for having committed an aggravated felony, our jurisdiction, and 

therefore the scope of our review, is further constrained by 8 U.S.C. § 1252(a)(2)(C). 

Accordingly, we exercise jurisdiction only to the extent that we are called upon to 

determine either jurisdictional facts, see Salim v. Ashcroft, 350 F.3d 307, 308 (3d Cir. 

2003) (per curiam), or constitutional and legal claims. Cospito v. Att‟y Gen., 539 F.3d 

166, 170 (3d Cir. 2008). Our standard of review in those instances is plenary. Denis v. 

Att‟y Gen., 633 F.3d 201, 205-06 (3d Cir. 2011); Jordon v. Att‟y Gen., 424 F.3d 320, 328 

(3d Cir. 2005).

III.

We have reviewed the constitutional claims and questions of law raised in 

Andujar‟s opening brief and find them all to be lacking in merit. In particular, we reject 

Andujar‟s claim that he has proven he is a non-removable “national,” as that term is 

defined in 8 U.S.C. § 1101(a)(22): “[t]he term „national of the United States‟ means (A) a 

citizen of the United States, or (B) a person who, though not a citizen of the United 

States, owes permanent allegiance to the United States.” Andujar, an alien who allegedly 

made an oath of allegiance to the United States, is not a national under our precedent. 

See Salim, 350 F.3d at 309 (in determining whether petitioner is a national, “simply filing 

an application for naturalization” is not enough; “for one such as Salim who is a citizen of 
5

another country, nothing less than citizenship will show „permanent allegiance to the 

United States.‟”); accord Lin v. United States, 561 F.3d 502, 508 (D.C. Cir. 2009) (“We 

join the majority of our colleagues and conclude manifestations of „permanent allegiance‟ 

do not, by themselves, render a person a U.S. national.”).1

In addition, we reject Andujar‟s claim that his due process rights were “violated by 

[the] INS when it did not inform the Petitioner that it had denied his application for 

naturalization in 1999, where the Petitioner only discovered this fact in 2009.” Andujar 

fails to explain how the alleged lack of notice concerning USCIS‟s denial of his 

naturalization application implicates the validity of the underlying order of removal. But 

even if this were a proper due process claim, there is no record support for Andujar‟s 

allegation that he did not receive notice that his naturalization application was denied and, 

in any event, he fails to adequately explain how he was prejudiced in any way by the lapse 

of time. See Leslie v. Att‟y Gen., 611 F.3d 171, 175 (3d Cir. 2010) (“allegations of due 

 

1

 Regarding Salim, Andujar requests that we “revisit its holding and overrule it.” 

Under our Internal Operating Procedures, however, “this panel cannot overturn a prior 

panel‟s precedential opinion.” Pareja v. Att‟y Gen., 615 F.3d 180, 190 (3d Cir. 2010); see

IOP 9.1 (“no subsequent panel overrules the holding in a precedential opinion of previous 

panel. Court en banc reconsideration is required to do so”). Alternatively, Andujar notes 

our statement that “a panel of our Court may decline to follow a prior decision of our 

Court without the necessity of an en banc decision when the prior decision conflicts with 

a Supreme Court decision.” United States v. Tann, 577 F.3d 533, 541 (3d Cir. 2009). 

But Andujar cites no Supreme Court decision, nor are we aware of one, that conflicts with 

the holding of Salim.
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process violations must ordinarily be accompanied by an initial showing of substantial 

prejudice”) (citation and internal quotations omitted).2 

Finally, we reject Andujar‟s claim that the termination of his social security 

benefits, by virtue of his anticipated removal, will “leave him as the anvil for a 

hammering bill of attainder.” 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. 

Elwood, 294 F.3d 552, 557 (3d Cir. 2002), a fact that obviates the ability of Andujar to 

demonstrate the existence of 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).3

 

2

In denying the naturalization application, USCIS noted that its review of 

Andujar‟s nine criminal dispositions “indicate arrests from years 1980 to 1990,” and that 

“[i]t must be noted that you pled guilty to all of the charges that you were arrested for. 

No evidence has been provided to conclusively support your reported lifestyle change as 

you failed to provide any documentary substantiation.” (AR 15.) Notably, Andujar‟s 

removal was predicated on a criminal conviction that postdated the denial of his 

naturalization application by several years. We fail to grasp the significance of any 

alleged lack of notice concerning USCIS‟s denial of the naturalization application. 

Andujar does not suggest that he would have abstained from criminal activity if only he 

had received prompt notice of USCIS‟s determination. 

3 We disagree with Andujar‟s contention that the civil nature of immigration 

proceedings has changed following Padilla v. Kentucky, 130 S. Ct. 1473 (2010). See
7

IV.

Andujar‟s “motion for leave to abandon Convention Against Torture Act claim, 

and for lifting of any stay of removal in relation thereof,” is granted, although we note 

that there does not appear to be any stay in place. His request for appointment of counsel

is denied. Andujar‟s petition for review will be denied.

 

Alvarado-Fonseca v. Holder, 631 F.3d 385, 391-92 (7th Cir. 2011) (In Padilla, “the Court 

noted that „deportation is a particularly severe „penalty,‟ and that removal proceedings, 

while „civil in nature,‟ are „intimately related to the criminal process.‟ However, the 

Court also reaffirmed that deportation „is not, in a strict sense, a criminal sanction.‟”) 

(internal citations omitted).