United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 8, 2007
Charles R. Fulbruge III
Clerk
No. 05-61100
Summary Calendar
MARGOT TORRICO-SANCHEZ, also known as Rose Gomez,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of a Final Administrative
Removal Order
No. A 77 804 531
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Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Margot Torrico-Sanchez (Torrico) petitions this court to
review her final administrative removal order, challenging the
Attorney General’s discretion to place her in expedited removal
proceedings under U.S.C. §§ 1228(b)(1), (2). The Department of
Homeland Security (DHS) charged Torrico with being removable
based on a prior aggravated felony conviction, pursuant to
8 U.S.C. § 1227(a)(2)(A)(iii).
Torrico avers that the Attorney General acted in an
arbitrary manner in not placing her into general removal
*
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this opinion should not be published and is not precedent except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. 05-61100
-2-
proceedings. She argues that this “raw exercise” of power
deprived her of due process of law under the Fifth Amendment to
the Constitution. The Government contends that this court is
without jurisdiction to consider the issue.
The REAL ID Act precludes judicial review of any removal
order based on, inter alia, commission of an aggravated felony.
8 U.S.C. § 1252(a)(2)(C); Hernandez-Castillo v. Moore, 436 F.3d
516, 519 (5th Cir.), cert. denied, 127 S. Ct. 40 (2006). The Act
also generally precludes judicial review of discretionary
decisions of the Attorney General. Gutierrez-Morales v. Homan,
461 F.3d 605, 609 (5th Cir. 2006). However, none of the
provisions of the Act “shall be construed as precluding review of
constitutional claims or questions of law raised upon a petition
for review.” 8 U.S.C. § 1252(a)(2)(D).
Because Torrico concedes that she was removable as an
aggravated felon, 8 U.S.C. § 1252(a)(2)(C) deprives this court of
jurisdiction unless Torrico’s argument presents a constitutional
claim or question of law. Although Torrico attempts to cloak her
arguments in terms of a due process violation and incorrect legal
conclusions, she is merely attempting to challenge the DHS’s
particular discretionary decision to place her in expedited
removal proceedings. See Delgado-Reynua v. Gonzales, 450 F.3d
596, 599-600 (5th Cir. 2006); Hadwani v. Gonzales, 445 F.3d 798,
800-01 (5th Cir. 2006); Flores-Ledezma v. Gonzales, 415 F.3d 375,
379 (5th Cir. 2005). Thus, this court has no jurisdiction over
No. 05-61100
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this issue. See Wilmore v. Gonzales, 455 F.3d 524, 526-29 (5th
Cir. 2006).
Torrico argues that the DHS Field Office Director violated
her due process rights when he failed to consider her
“supplemental submissions,” her mental and medical condition, her
status as a battered spouse, and her entitlement to protection
under the Violence Against Women Act. This court has
jurisdiction over this claim. See 8 U.S.C. § 1252(a)(2)(D).
Torrico has not, however, shown that she is entitled to
relief on her due process claim. The supplemental documentary
submissions were appropriately excluded from the administrative
record because they were submitted after the 10-day rebuttal
period. See 8 C.F.R. § 238.1(c)(1). With regard to her mental
and medical condition and her status as a battered spouse, the
DHS Director specifically stated that he had considered Torrico’s
response to the charge of removability, which raised these
issues. Lastly, Torrico’s argument that the DHS Director failed
to give her the protections afforded under the Violence Against
Women Act is raised for the first time in her petition for review
and will not be considered by this court. See Leverette v.
Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999).
Accordingly, the petition for review is DISMISSED IN PART FOR
LACK OF JURISDICTION and DENIED IN PART.