United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 10, 2006
Charles R. Fulbruge III
Clerk
No. 05-60859
Summary Calendar
JULIO ELPIDIO ROMAN,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A71 983 001
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Julio Elpidio Roman, a native and citizen of the Dominican
Republic, has petitioned for review of an order of the Board of
Immigration Appeals (BIA) affirming the decision of the immigration
judge (IJ) ordering Roman removed from the United States. The IJ
found Roman removable for having been convicted of a crime
involving moral turpitude within five years of admission and for
having been convicted of an aggravated felony. The Government
argues that this court lacks jurisdiction to consider Roman’s
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 05-60859
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petition for review because it is based on his commission of an
aggravated felony.
The REAL ID Act**, which became effective on May 11, 2005,
altered judicial review of removal orders in habeas corpus
proceedings. Under § 106(a) of the Immigration and Nationality Act
(INA), “a petition for review filed with an appropriate court of
appeals in accordance with this section shall be the sole and
exclusive means for judicial review of an order of removal entered
or issued under any provision of [the Immigration and Nationality
Act].” Rosales v. Bureau of Immigration and Customs Enforcement,
426 F.3d 733, 736 (5th Cir. 2005), cert. denied, 126 S. Ct. 1055
(2006) (quoting § 106(a), which may be found at 8 U.S.C. §
1252(a)(5)). Although § 1252(b)(2)(C) “generally prohibits
judicial review of removal orders issued on the basis of an alien’s
commission of an aggravated felony,” the REAL ID Act provides that
none of its jurisdiction-stripping provisions “‘shall be construed
as precluding review of constitutional claims or questions of law
raised upon a petition for review filed with an appropriate court
of appeals.’” Rosales, 426 F.3d at 736. Because Roman raises a
due process claim, this court has jurisdiction over his petition
for review pursuant to § 1252(b)(2)(D). Id.
Roman argues that the IJ violated his due process rights by
not allowing him to testify on his own behalf at the removal
**
REAL ID Act of 2005, Pub. L. 109-13, 119 Stat. 231, 302-11
(May 11, 2005).
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proceedings. He also contends that the IJ violated his due process
rights by misapplying the burdens of proof and requiring him to
establish his own deportability.
This court reviews a claim of a due process violation de novo.
Ogbemudia v. INS, 988 F.2d 595, 598 (5th Cir. 1993). “Due process
challenges to deportation proceedings require an initial showing of
substantial prejudice.” Anwar v. INS, 116 F.3d 140, 144 (5th Cir.
1997). Although the IJ did deny Roman an opportunity to be heard
at his hearing, Roman has failed to show substantial prejudice,
i.e., make a prima facie showing that he would have been entitled
to the INA § 101(a)(43)(P) exception. See id. Further, the record
does reflect that the IJ correctly placed the burden of proof
regarding Roman’s deportability on the former Immigration and
Naturalization Service. The only burden that the IJ placed on
Roman was to establish his affirmative defense that he was not
deportable because he fell within the § 101(a)(43)(P)’s exception.
This was correct on the part of the IJ. See 8 U.S.C. §
1101(a)(43)(P)(requiring the alien to “affirmatively show[]” that
the offense was committed to assist a parent, spouse, or child).
Roman also argues that the BIA erred by summarily affirming
the IJ’s ruling without opinion. He contends that the BIA’s
summary affirmance was erroneous because the IJ violated his due
process rights and because the record was incomplete due to the
IJ’s actions.
No. 05-60859
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This court has held that the BIA’s summary affirmance
procedures “do not deprive this court of a basis for judicial
review and . . . do not violate due process.” Soadjede v.
Ashcroft, 324 F.3d 830, 832-33 (5th Cir. 2003). Because the IJ did
not violate Roman’s due process rights, the BIA did no err in its
summary affirmance.
Accordingly, the petition for review is DENIED.