NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-3775
___________
RAMON BRITO,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A076-545-259)
Immigration Judge: Honorable Andrew Arthur
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 6, 2011
Before: FUENTES, GREENAWAY, JR., and COWEN Circuit Judges
(Opinion filed May 10, 2011)
___________
OPINION
___________
PER CURIAM
Pro se petitioner Ramon Brito petitions for review of an order of the Board of
Immigration Appeals (“BIA”) dismissing his appeal from the Immigration Judge’s (“IJ”)
order of removal. For the reasons that follow, we will deny his petition for review.
Brito is a native and citizen of the Dominican Republic. He initially entered the
United States without authorization and became a lawful permanent resident on May 5,
2000. In 2003, he was convicted in federal court of conspiracy to distribute and
possession with intent to distribute cocaine and cocaine base in violation of 21 U.S.C.
§ 846. He was initially sentenced to 262 months in prison, but his sentence was later
reduced to 210 months. On February 5, 2009, he was served with a Notice to Appear,
charging him with removability based on his conviction of a crime involving moral
turpitude within five years of admission, see 8 U.S.C. § 1227(a)(2)(A)(i), conviction of
an aggravated felony,1 see 8 U.S.C. § 1227(a)(2)(A)(iii), and conviction of a controlled
substance violation. See 8 U.S.C. § 1227(a)(2)(B)(i).
Brito appeared before the IJ via videoconference from Low Security Correctional
Institution-Allenwood. After two continuances, Brito announced that he would proceed
pro se because he could not afford to retain counsel. The IJ went on to explain Brito’s
rights to him. The transcript of proceedings reflects that, after explaining each of his
rights, the IJ asked Brito if he understood them and Brito acknowledged that he did.
Brito admitted the allegations against him in the Notice to Appear and the IJ found him
removable as charged. The IJ then asked Brito whether he had any immigration
applications at that time, which he did not, what country he would want to be removed to,
to which he responded “to my country of course,” and if there were any reasons Brito
could not return to the Dominican Republic. To the last question, Brito answered “no, I’d
1
The Notice to Appear charged Brito with conviction of an aggravated felony
based both on his drug trafficking conviction, see 8 U.S.C. § 1101(a)(43)(B), and
2
want to go back to my country.” (A.R. 72.) Due to the nature of his convictions, the IJ
indicated that it did not appear he was eligible for any relief from removal. Finally, the IJ
asked “Is there anything that you want to tell me before I order you removed from the
United States to the Dominican Republic?” Brito responded that he would have to come
back to the United States to see his wife and family. (A.R. 72-73.) He did not otherwise
express any reservations about being removed to the Dominican Republic.
Brito appealed pro se, arguing that the IJ erred in failing to advise Brito that,
despite his felony convictions, he could have filed an application for relief under the
Convention Against Torture (“CAT”). See 8 C.F.R. § 1208.16(c). Brito also alleged that
the IJ violated 8 C.F.R. § 1240.10, which sets out the rules governing hearings in removal
proceedings. As the basis for his claim, Brito alleged that he had cooperated with the
federal authorities, providing them with information regarding a murder that implicated
members of a Dominican drug organization. Because of this, he claimed that his life
would be in danger if he were to return to the Dominican Republic, and that the
Dominican government has been known to “turn a blind eye” to the activities of this drug
organization. Brito did not provide any more specific information in support of this
claim.
Reviewing the transcript from the hearing before the IJ, the BIA held that the IJ
did not err in not informing Brito of the potential availability of relief under the CAT,
where Brito failed to indicate any fears he had about returning to the Dominican
Republic, or any way in which his life might be in danger should he do so. Furthermore,
his conspiracy conviction. See 8 U.S.C. § 1101(a)(43)(U).
3
the BIA held that Brito’s “generalized and unsubstantiated allegations” were entitled to
“limited probative weight.” To the extent Brito’s appellate brief could be read to claim
that he had been deprived of due process in the conduct of the hearing, the BIA held that
the record reflected that the IJ had provided Brito with all of the required information and
warnings and “took care to ensure that he understood the same.” The BIA agreed with
the IJ’s determination that Brito was removable as charged and dismissed his appeal.
Brito filed a petition for review pro se.
We lack jurisdiction over the BIA’s final order of removal to the extent it finds
Brito removable for having committed an offense under INA § 237(a)(2)(A)(iii) or (B).
See 8 U.S.C. § 1252(a)(2)(C). However, we retain jurisdiction over constitutional claims
or questions of law. See 8 U.S.C. § 1252(a)(2)(D).
In his petition for review, Brito primarily argues that he did not understand the
import of the removal proceedings, that he may have been suffering from complications
related to his diabetes at the time, that the IJ found him removable under a statute which
was not charged in the Notice to Appear, and that the IJ should have advised him of his
right to seek relief under the CAT. To the extent Brito alleges that he was deprived of
due process in the conduct of his hearing, we retain jurisdiction over his petition for
review. However, we conclude that his claims are without merit. The record reflects that
the IJ explained Brito’s rights to him several times to ensure that he understood them.
Under 8 C.F.R. § 1240.11(c)(1), the IJ is mandated to inform an alien of his right to apply
for asylum or withholding of removal “[i]f the alien expresses fear of persecution or harm
upon return to any of the countries to which the alien might be removed.” Brito
4
expressed no hint of fear during his removal proceedings, and, in fact, expressed pleasure
at the idea of returning to the Dominican Republic. 2 (A.R. 61-62.) Brito’s claim that the
IJ erroneously found him guilty of a “weapons charge” under “924C” is without merit.
The IJ properly found that Brito had committed a “drug trafficking crime” as defined in
18 U.S.C. § 924(c)(2). While we understand that immigration proceedings may be
daunting to navigate without the assistance of an attorney, our review of the record
assures us that the IJ endeavored to ensure that Brito was apprised of his rights and
understood what was happening. Accordingly, we cannot conclude that Brito’s right to
due process was in any way compromised by the conduct of these proceedings. See
Leslie v. Attorney Gen., 611 F.3d 171, 180 (3d Cir. 2010) (explaining that aliens in
removal proceedings are entitled to fundamentally fair removal hearings that comport
with due process).
Based on the foregoing, we will deny the petition for review.
2
The Government argues that 8 U.S.C. § 1240.11(c)(1) refers only to withholding
of removal under 8 U.S.C. § 1231(b)(3), and not withholding of removal under the
CAT. In light of our conclusion that Brito’s testimony failed to invoke this section
in the first place, we need not reach the question whether this section does or does
not encompass claims under the CAT.
5