Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
8-4-2008
Gonzalez-Lora v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1523
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"Gonzalez-Lora v. Atty Gen USA" (2008). 2008 Decisions. Paper 733.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/733
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 06-1523
___________
WILFREDO GONZALEZ-LORA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A38 507 690)
Immigration Judge: Honorable Paul Grussendorf
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 23, 2008
Before: McKEE, SMITH and CHAGARES, Circuit Judges
(Opinion filed: August 4, 2008)
___________
OPINION
___________
PER CURIAM
Wilfredo Lora-Gonzalez, a native and citizen of the Dominican Republic, was
admitted to the United States in 1984. In 1999, he was convicted on drug conspiracy
charges. See 21 U.S.C. §§ 846 and 841. The former Immigration and Naturalization
Service then charged Gonzalez-Lora with removability for having been convicted of an
aggravated felony as defined by Immigration and Nationality Act (“INA”) §§
101(a)(43)(B) and 101(a)(43)(U) [8 U.S.C. §§ 1101(a)(43)(B) and 1101(a)(43)(U)], see
INA § 237(a)(2)(A)(iii) [8 U.S.C. § 1227(a)(2)(A)(iii)], and for having been convicted of
a controlled substance offense, see INA § 237(a)(2)(B)(i) [8 U.S.C. § 1227(a)(2)(B)(i)].
An Immigration Judge (“IJ”) in Philadelphia found Gonzalez-Lora removable as charged
and, in December 2000, the Board of Immigration Appeals (“BIA”) dismissed his
appeal.1
In July 2004, Gonzalez-Lora challenged the removal order in a 28 U.S.C. § 2241
petition filed in the Northern District of West Virginia, the jurisdiction in which he was
then incarcerated. While the § 2241 petition was pending, the REAL ID Act of 2005 took
effect, prompting the District Court to transfer the habeas petition to this Court to be
treated as a petition for review. See Bonhometre v. Gonzales, 414 F.3d 442, 446 (3d Cir.
2005) (noting that “all habeas corpus petitions brought by aliens that were pending in the
district courts on the date the Real ID Act became effective (May 11, 2005) are to be
1
In May 2002, Gonzalez-Lora filed a motion to reopen, which the BIA denied as
untimely. He sought reopening again in June 2004, but the BIA denied the motion as
numerically barred, and concluded that none of the exceptions to that bar were applicable.
See 8 C.F.R. § 1003.2(c)(3). Gonzalez-Lora has not challenged either of these decisions.
2
converted to petitions for review and transferred to the appropriate courts of appeals).
Although INA § 242(a)(2)(C) [8 U.S.C. § 1252(a)(2)(C)] eliminates our jurisdiction to
entertain petitions for review from aliens like Lora-Gonzalez, INA § 242(a)(2)(D) [8
U.S.C. § 1252(a)(2)(D)] restores that jurisdiction to the extent that the petition raises
“constitutional claims or questions of law.” See, e.g., Francois v. Gonzales, 448 F.3d
645, 648 (3d Cir. 2006). And, because the REAL ID Act provided that the mandatory 30-
day time period for filing a petition for review, see INA § 242(a)(2)(D) [8 U.S.C.
§ 1252(a)(2)(D)], does not apply to transferred cases, our jurisdiction extends to the
December 2000 order of the BIA.2 See Kamara v. Attorney General, 420 F.3d 202, 210
(3d Cir. 2005).
Lora-Gonzalez challenges the removal order on the basis that the Immigration and
Naturalization Service and the United States Attorney’s Office colluded to prevent his
release on bail in the underlying criminal proceedings. Because he was denied bail, Lora-
Gonzalez claims that he was “unable to effectively defend against the government’s
allegations and acquire exculpatory evidence.” Importantly, however, an alien may not
collaterally attack in removal proceedings the criminal conviction which serves as the
2
We do not have jurisdiction, however, to review Gonzalez-Lora’s contention that the
IJ improperly ordered his removal based on a drug conspiracy conviction that was still
being appealed. Gonzalez-Lora did not raise this claim with the BIA. See INA
§ 242(d)(1) [8 U.S.C. § 1252(d)(1)]; see Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95
(3d Cir. 2003) (holding that statutory exhaustion requirement is jurisdictional and bars
judicial review of unexhausted claims).
3
basis for the removal order. See Al-Najar v. Mukasey, 515 F.3d 708, 714-15 (6 th Cir.
2008) (collecting cases).
Finally, Gonzalez-Lora claims that he is a United States citizen. The record
indicates that Gonzalez-Lora’s naturalization application was denied in 1992 because he
failed to respond to requests for proof that he had registered with the Selective Service.
We have jurisdiction to review a nationality claim, see INA §§ 242(a)(2)(D), (b)(5)(A),
unless we determine that there is a genuine issue of material fact, in which case the
proceeding is transferred to the District Court, see INA § 242(b)(5)(B). No factual
dispute is presented by Gonzalez-Lora’s claim that he is a national. Although we have
jurisdiction, the citizenship claim is without merit. This Court has held that “for one such
as [Gonzalez-Lora] who is a citizen of another country, nothing less than citizenship will
show ‘permanent allegiance to the United States.’” Salim v. Ashcroft, 350 F.3d 307, 310
(3d Cir. 2003) (per curiam). Here, submission of an incomplete naturalization application
does not demonstrate “permanent allegiance to the United States,” and does not render
Gonzalez-Lora a national.
For these reasons, we will deny the petition for review.
4