Franco-Monegro v. Atty Gen USA , 236 F. App'x 767 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
6-8-2007
Franco-Monegro v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2637
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 06-2637
________________
ALFREDO ISAIAS FRANCO-MONEGRO,
a/k/a Alfredo Fraco,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order
of the Board of Immigration Appeals
(Agency No. A14 893 983)
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
JUNE 5, 2007
Before: FISHER, ALDISERT AND WEIS, CIRCUIT JUDGES
(Filed: June 8, 2007)
_______________________
OPINION
_______________________
PER CURIAM
I.
Alfredo Franco-Monegro, a native and citizen of the Dominican Republic, was
admitted into the United States in 1967 as a legal permanent resident. In 1992, the
Immigration and Naturalization Service (“INS”) initiated deportation proceedings
alleging Franco-Monegro was deportable for having committed a drug offense based on a
February 1990 New York state conviction. Administrative Record (“A.R.”) 170. In 2005,
the Bureau of Immigration Control and Enforcement (formally the INS) filed additional
charges alleging that Franco-Monegro was removable1 for having committed an
aggravated felony based on his 1985, March 1990 and 2003 state drug-related
convictions. A.R. 113, 146.
The Immigration Judge (“IJ”) found Franco-Monegro removable as charged and
statutorily ineligible for naturalization because he had not demonstrated the requisite
good moral character. A.R. 38-40. The Board of Immigration Appeals (“BIA”) adopted
and affirmed the IJ’s decision, and also found that Franco-Monegro had not satisfied the
requirements for establishing an ineffective assistance of counsel claim. A.R. 2.
Franco-Moegro, proceeding pro se, timely petitioned the Court for review.2
1
Pursuant to the Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (IIRIRA) ‘removability’ proceedings now encompass deportation proceedings.
Alaka v. Attorney General of U.S., 456 F.3d 88, 93 n.7 (3d Cir. 2006).
2
Because Franco-Monegro was detained when he filed his pro se petition for review,
we deem it filed on April 26, 2006, the date on his inmate request form and “affirmation
of service.” Cf. Houston v. Lack, 487 U.S. 266 (1988). Thus, the petition was timely
2
Because Franco-Monegro was found removable based on at least one drug offense, our
jurisdiction over the order of removal is limited to the review of constitutional claims and
questions of law. 8 U.S.C. § 1252(a)(2)(C), (D); 8 U.S.C. § 1227(a)(2)(B)(i).3
II.
We need not address Franco-Monegro’s assertion that his 1990 conviction was not
an aggravated felony, because Franco-Monegro, through counsel, otherwise conceded
that his 2003 conviction for attempted sale of a controlled substance in the third degree
was an aggravated felony. A.R. 86, 91-92.
Franco-Monegro argues that the IJ violated his right to due process by not advising
him of his eligibility for waiver from removal under INA § § 212(c), (h) (repealed 1996)
We find no due process violation. See Bonhometre v. Gonzales, 414 F.3d 442, 448 n.9
(3d Cir. 2005) (recognizing Court view that there is no constitutional right to be informed
of possible eligibility for discretionary relief); United States v. Torres, 383 F.3d 92, 105-
06 (3d Cir. 2004) (holding that § 212(c) does not create a protectible liberty interest).
Franco-Monegro also argues that because both his 1990 conviction and the initiation of
the removal proceedings occurred prior to the 1996 repeal of § 212(c), the IJ erred as a
matter of law in finding him ineligible for a waiver. This argument is unpersuasive.
filed within 30 days of the BIA’s order of April 4, 2006. See 8 U.S.C. § 1252(b)(1).
3
Although the Government began deportation proceedings before April 1, 1997, we
treat this case as if it had been filed as a petition for review under 8 U.S.C. § 1252, as
amended by the Real ID Act. See Real ID Act, § 106(d); Papageorgiou v. Gonzales, 413
F.3d 356, 358 (3d Cir. 2005).
3
Even if Franco-Monegro was eligible for a waiver from the earlier conviction, that
conviction and his removability as an aggravated felon based on his 2003 conviction
precludes relief. See 8 U.S.C. §§ 1229b(a)(3), (c)(6); Rodriguez-Munoz v. Gonzales, 419
F.3d 245, 247-48 (3d Cir. 2005).
Next, Franco-Monegro argues that he should be deemed a United States national
because of his long residency and service in the armed forces. It does not appear that
Franco-Monegro raised this argument before the IJ. Nonetheless, the argument is without
merit because for a person who is a citizen of another country, “nothing less than
citizenship will show [the requisite] permanent allegiance to the United States.” Salim v.
Ashcroft, 350 F.3d 307, 310 (3d Cir. 2003).
Lastly, we find no error in the BIA’s denial of the ineffective assistance of counsel
based on Franco-Monegro’s failure to comply with the requirements of Matter of Lozada,
19 I&N Dec. 637 (BIA 1988). A.R. 2. We recognize that Franco-Monegro has presented
documentation to this Court suggesting efforts to comply with the Lozada requirements.
However, our review is limited to the administrative record, 8 U.S.C. § 1252(b)(4)(A),
which does show that these documents were submitted to the BIA.
Accordingly, we deny the petition for review. We also deny Respondent’s motion
to dismiss for lack of jurisdiction. See supra n.2.
4