UNPUBLISHED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Petition denied by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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
2
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”). * 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.
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.
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”).
3
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
4