Opinions of the United
2008 Decisions 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Precedential or Non-Precedential: Non-Precedential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NOT PRECEDENTIAL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.
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
2
to appeal, as the IJ had granted him the only relief he had requested.1 Aguilera-Ramos’s
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
1
Aguilera-Ramos had conceded that he was removable, and the only relief he
requested was voluntary departure, which the IJ granted. Thus, the IJ would have had no
reason to ask whether he wished to appeal.
2
Aguilera-Ramos’s notice argued that it was unfair to send him back to Bolivia, and
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.
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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
3
Aguilera-Ramos has also filed a “Motion for Examination of Decision 1-11-2008
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