Juan Castillo v. Eric Holder, Jr. , 539 F. App'x 243 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1235
JUAN RAMON CASTILLO, a/k/a Juan Ramon Castillo Ordonez,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: August 20, 2013 Decided: September 16, 2013
Before DAVIS, KEENAN, and WYNN, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Arnedo S. Valera, LAW OFFICES OF VALERA & ASSOCIATES, Fairfax,
Virginia, for Petitioner. Stuart F. Delery, Acting Assistant
Attorney General, Ernesto H. Molina, Jr., Assistant Director,
Anthony P. Nicastro, Senior Litigation Counsel, Office of
Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Juan Ramon Castillo, a native and citizen of Honduras,
petitions for review of an order of the Board of Immigration
Appeals (“Board”) denying his motion for reconsideration. We
deny the petition for review.
The denial of a motion to reconsider is reviewed for
abuse of discretion. 8 C.F.R. § 1003.2(a) (2013); Narine v.
Holder, 559 F.3d 246, 249 (4th Cir. 2009); Jean v. Gonzales, 435
F.3d 475, 481 (4th Cir. 2006). Because a motion to reconsider
asserts that the Board made an error in its earlier decision,
the motion must specify the errors of fact or law in the prior
Board decision and must be supported by “pertinent authority.”
8 C.F.R. § 1003.2(b)(1). This Court will reverse a denial of a
motion to reconsider “only if the Board acted arbitrarily,
irrationally, or contrary to law.” Narine, 559 F.3d at 249(internal quotation marks and citation omitted).
Under 8 U.S.C. § 1252(a)(2)(C) (2006), this Court
lacks jurisdiction, except as provided in 8 U.S.C.
§ 1252(a)(2)(D) (2006), to review the final order of removal of
an alien who was found inadmissible under 8 U.S.C. § 1182(a)(2)
(2006), for having been convicted of an offense related to a
controlled substance violation. Under § 1252(a)(2)(C), we
retain jurisdiction “to review factual determinations that
trigger the jurisdiction-stripping provision, such as whether
2
[Castillo] [i]s an alien and whether []he has been convicted of”
a controlled substance violation. Ramtulla v. Ashcroft, 301
F.3d 202, 203 (4th Cir. 2002). Once we confirm these two
factual determinations, then, under 8 U.S.C. § 1252(a)(2)(C),
(D), we can only consider “constitutional claims or questions of
law.” See Mbea v. Gonzales, 482 F.3d 276, 278 n.1 (4th Cir.
2007).
In this case, the record clearly supports the finding
that Castillo is an alien and that his conviction for possession
of drug paraphernalia was related to a controlled substance
violation. See Mellouli v. Holder, 719 F.3d 995, 999-1000 (8th
Cir. 2013); Alvarez Acosta v. Attorney Gen., 524 F.3d 1191, 1196
(11th Cir. 2008). Accordingly, we have jurisdiction only to
review constitutional claims and questions of law.
We note that Castillo raises claims that were not
raised before the Board. He contends that his conviction was
not a conviction for immigration purposes in view of the
congressional intent expressed in the Federal First Offender
Act, 18 U.S.C. § 3607 (2006). He also contends that his
conviction did not relate to a controlled substance violation
because it related to the paraphernalia used with controlled
substances. We do not have jurisdiction to review these claims,
see 8 U.S.C. § 1252(d)(1) (2006); Massis v. Mukasey, 549 F.3d
631, 638-40 (4th Cir. 2008), and we are also not persuaded by
3
his argument that exhaustion was not necessary because it would
have been futile. See Popal v. Gonzales, 416 F.3d 249, 252-53
(3d Cir. 2005); Theodoropoulos v. INS, 358 F.3d 162, 172 (2d
Cir. 2004).
Castillo also challenges the finding that he was not
eligible for a waiver under Immigration and Nationality Act
(“INA”) § 212(h), 8 U.S.C. § 1182(h) (2006). Once the Attorney
General established that Castillo was inadmissible by virtue of
his conviction, the burden shifted to him to show that he was
eligible for relief from removal. See 8 U.S.C. § 1229a(c)(4)(A)
(2006). Castillo attempts to downplay his burden by asserting
that he was denied due process because the immigration judge did
not have a hearing to determine whether Castillo’s conviction
was related to a small amount of marijuana for personal use.
However, Castillo never sought a hearing or argued that the
evidence would show that his conviction does not bar him from
relief.
Accordingly, we deny the petition for review. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
PETITION DENIED
4