NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-2816
RODOLPHE NOGBOU,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
On Petition for Review of an Order
of the Board of Immigration Appeals
Agency No. A093 005 698
Immigration Judge: Walter A. Durling
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 10, 2010
Before: BARRY, AMBRO and COWEN, Circuit Judges
(Opinion filed May 20, 2010)
OPINION
PER CURIAM
Rodolphe Nogbou petitions for review of an order of the Board of Immigration
Appeals (“BIA”) dismissing his appeal from an Immigration Judge’s (“IJ”) final order of
removal. We will deny the petition for review.
Nogbou is a native and citizen of Côte d’Ivoire. He entered the United States at an
unknown time and place. He applied for adjustment of status under legalization laws, but
the application was denied in 2005.1 He was charged with removability pursuant to
Immigration and Nationality Act § 212(a)(6)(A)(i) [8 U.S.C. § 1182(a)(6)(A)(i)] for being
present in the United States without having been admitted or paroled. He testified that he
had been admitted, A.R. 211, 213; but “could not say when he entered and how he had
obtained legal status.” A.R. 1 (BIA decision). Nogbou did not apply for any relief, but
sought a continuance to await the conclusion of an appeal in a criminal case for assaulting
a federal officer, and to await the outcome of civil cases he had filed. A.R. 217, 221.
The IJ denied the continuance, noting that he was not being removed on the basis of his
criminal conviction. The BIA dismissed the appeal. The BIA found that Nogbou had not
met his burden of establishing that he was legally present in the United States, found that
he was removable, and found a continuance was not warranted. Nogbou, proceeding pro
se, filed a timely petition for review.2
We discern the following issues in Nogbou’s brief: (1) the Government
1
See Immigration Reform and Control Act of 1987 (“IRCA”), 8 U.S.C. § 1255a [INA
§ 245a]. IRCA “allow[ed] undocumented aliens who ha[d] resided continuously in the
United States since January 1, 1982, to apply to the INS for legal resident status, despite
the usual barrier of not having entered the United States legally.” Arreola-Arellano v.
I.N.S., 223 F.3d 653, 655 (7 th Cir. 2000).
2
On August 7, 2009, this Court denied Nogbou’s motion for a stay of removal.
2
improperly used facts from his legalization application to charge him with being
removable; (2) his criminal conviction pending on appeal was improperly used as a basis
for the removal order; (3) the BIA improperly held that he had the burden of proving
admissibility; (4) Nogbou was denied a fair opportunity to appeal because the
Government submitted inaccurate and detrimental documents to the BIA but never served
those documents on Nogbou; (5) the Government should be estopped from removing him
based on affirmative misconduct by government officials; (6) he was denied procedural
due process; (7) he was denied substantive due process; (8) his right to equal protection
was violated; and (9) the IJ improperly denied him the right to stay until his criminal and
civil cases were concluded. Nogbou asks the Court to dismiss the removal order and
grant his application for adjustment of status under the legalization laws.
We first consider the basis of the finding that Nogbou is removable: his illegal
entry without inspection. The Immigration Reform and Control Act of 1987 (“IRCA”),
included a provision preventing the Government from using information provided in a
legalization application “for any purposes other than processing that application,
enforcing penalties for false statements in the application, or fulfilling reporting
requirements to Congress.” Arreola-Arellano, 223 F.3d at 655; 8 U.S.C. § 1255a(c)(5)
[INA § 245a(c)(5)]. However, there is no indication that the Government used
information from Nogbou’s legalization application in deciding to commence removal
proceedings against him. It appears that Nogbou came to the Government’s attention
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because of the criminal charges against him. IRCA does not prevent the Government
from checking a legalization file to see if the application has been granted or denied.
Arreola-Arellano, 223 F.3d at 656.
Here, because Nogbou’s application had been denied, the Government could
remove him on the basis of his illegal entry.3 Nogbou did not meet his burden of showing
that he had entered the United States legally. See 8 U.S.C. § 1361 [INA § 291]. Further,
the fact that Nogbou had at one time applied for legalization did not insulate him from
later removal. In fact, IRCA contemplated the review of the denial of a legalization
application in later deportation proceedings. See 8 U.S.C. § 1255a(f)(4)(A) [INA
§ 245a(f)(4)(A)]; Reno v. Catholic Social Services, Inc., 509 U.S. 43, 54 (1993).4
The remainder of Nogbou’s arguments are equally without merit. The documents
that Nogbou alleges were provided ex parte to the BIA (although the Government states
they were served on Nogbou) did not form the basis of the BIA’s decision against him.
Nogbou was given a full and fair opportunity to present his claims, he was not denied the
3
Nogbou’s claim that he was found removable on the basis of his criminal conviction
is belied by the record. A.R. 225 (Notice to Appear); A.R. 206-07 (IJ’s decision); A.R. 2-
3 (BIA’s decision).
4
However, we may not review the denial of Nogbou’s legalization application,
because he did not appeal the denial of his application to the Administrative Appeals
Unit, as provided by statute. See 8 U.S.C. § 1255a(f)(3) [INA § 245a(f)(3)] (providing
for single level administrative review of denial of application for adjustment under
legalization law); see also 8 U.S.C. § 1105a(c) (1996) (court may not review order of
deportation unless alien has exhausted administrative remedies); 8 U.S.C. § 1252(d)(1)
(same).
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equal protection of the law, and he has not presented any basis to estop the Department of
Homeland Security from removing him. Lastly, the IJ did not abuse his discretion by
denying a continuance to allow Nogbou to remain in the United States pending the
disposition of his unrelated criminal appeal and civil suits.
For the foregoing reasons, we will deny the petition for review.
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