Gondola v. Gonzales ( 2006 )


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  •                                                         United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT                    May 4, 2006
    ))))))))))))))))))))))))))
    No. 06-60048                Charles R. Fulbruge III
    ))))))))))))))))))))))))))                 Clerk
    ROBERTO ANTONIO GONDOLA,
    Petitioner,
    v.
    ALBERTO R GONZALES, U S ATTORNEY GENERAL,
    Respondent.
    -----------------------
    Petition for Review of an Order of the
    Board of Immigration Appeals
    (A21 566 413)
    ------------------------
    Before SMITH, GARZA, and PRADO, Circuit Judges.
    PER CURIAM:*
    Although the district court erred in transferring this case
    pursuant to 
    8 U.S.C. § 1252
     note (2005) (Transfer of Cases),
    transfer is proper under 
    28 U.S.C. § 1631.1
    Because Gondola has been convicted in Texas state court of
    *
    Pursuant to 5TH CIRCUIT RULE 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    that this opinion should not be published and is not precedent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 CIRCUIT
    RULE 47.5.4.
    1
    “Whenever a civil action is filed . . . [and] there is a
    want of jurisdiction, the court shall, if it is in the interest
    of justice, transfer such action or appeal to any other such
    court in which the action or appeal could have been brought at
    the time it was filed.”
    1
    possessing and delivering at least 400 grams of cocaine,2 
    8 U.S.C. § 1252
    (a)(2)(C) limits this court’s jurisdiction to review
    Gondola’s petition.    “[W]e retain jurisdiction to determine
    jurisdictional facts.    Specifically, to determine whether we are
    precluded from reviewing this petition, we must inquire, first,
    whether [the Petitioner] is an alien and then, if he is, whether
    he is removable for having committed a crime covered by 
    8 U.S.C. § 1252
    (a)(2)(C).”     Balogun v. Ashcroft, 
    270 F.3d 274
    , 278 (5th
    Cir. 2001).
    Gondola served in the United States Marine Corps in Vietnam.
    As a result, he was eligible for naturalization under 
    8 U.S.C. § 1440.3
       Gondola filed a Petition for Naturalization on March 22,
    1985 and argues that, but for the Government’s error in sending
    his naturalization papers to an incorrect address, he would have
    been a naturalized citizen prior to his 1992 conviction.    The
    record shows that Gondola failed to appear for his final hearing
    Swearing In Ceremony because notice of the hearing was sent to
    one of Gondola’s previous addresses, even though Gondola’s
    current address was on file.
    2
    On May 22, 1992, Gondola, a native of Panama, was
    convicted of possessing and delivering at least 400 grams of
    cocaine in violation of Texas Health and Safety Code § 481.114.
    He was sentenced to forty years of imprisonment.
    3
    
    8 U.S.C. § 1440
     is entitled “Naturalization through
    active-duty service in the Armed Forces during World War I, World
    War II, Korean hostilities, Vietnam hostilities, or other periods
    of military hostilities.”
    2
    Construing Gondola’s argument broadly,4 he appears to argue
    that he is not an alien who is removable by reason of having
    committed an offense covered in 
    8 U.S.C. § 1252
    (a)(2)(C).
    Despite the Government’s error in mailing notice to the wrong
    address, 
    8 U.S.C. § 1448
     requires that an applicant for
    naturalization take an oath of renunciation and allegiance in
    order to be admitted to citizenship.5    Gondola admits he took no
    such oath, albeit through no fault of his own.    Gondola is not a
    naturalized citizen, and is therefore an alien who is removable
    by virtue of his conviction for an aggravated felony.6    As
    Gondola does not raise constitutional claims or other questions
    of law,7 we lack jurisdiction to review his petition further.
    For the reasons stated above the respondent’s motion to
    dismiss is GRANTED.    Gondola’s motion for stay of deportation
    pending review is DENIED AS MOOT.
    4
    “[W]e construe the submissions of pro se litigants broadly
    in deference to their status.” Royal v. Tombone, 
    141 F.3d 596
    ,
    599 (5th Cir. 1998).
    5
    Compare Williams-Igwonobe v. Gonzales, 
    437 F.3d 453
     (5th
    Cir. 2006) (Petitioner, who did not receive actual notice of his
    deportation hearing because notice was sent to his old address,
    could reopen the proceedings for “reasonable cause.”).
    6
    Gondola does not dispute that he committed an offense
    covered in 
    8 U.S.C. § 1252
    (a)(2)(C).
    7
    See 
    8 U.S.C. § 1252
    (a)(2)(d).
    3
    

Document Info

Docket Number: 06-60048

Judges: Smith, Garza, Prado

Filed Date: 5/4/2006

Precedential Status: Non-Precedential

Modified Date: 3/2/2024