Salgado v. Gonzales, et al

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
United States Court of Appeals
Fifth Circuit
F I L E D
February 27, 2006
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_________________
No. 04-30880
(Summary Calendar)
_________________
NESTOR SALGADO,
Plaintiff-Appellant,
versus
ALBERTO R GONZALES, U S ATTORNEY GENERAL; JAMES ZIGLAR; EDWARD
MCELROY; CARYL THOMPSON,
Defendants-Appellees.
Appeal from the United States District Court
For the Western District of Louisiana
UCDC No. 2:04-CV-778-PM
Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Nestor Salgado appeals the district court’s denial of his 28 U.S.C. § 2241 habeas corpus
petition, which challenged an order of removal by the Board of Immigration Appeals (BIA). In

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accordance with the Real ID Act, this court converts Salgado’s writ petition into a timely petition for
review of the BIA’s order. See Rosales v. Bureau of Immigration and Customs Enforcement, 426
F.3d 733, 736 (5th Cir. 2005), cert. denied __ S.Ct. __, 2006 WL 37358 (Jan. 9, 2006); see also Real
ID Act, Pub. L. No. 109-13, § 106(c), 119 Stat. 231, 311 (2005) (converted petitions shall not be
subject to the thirty-day time filing deadline ordinarily applicable to petitions for review).
Salgado argues that his two convictions for theft of services do not render him deportable
because they are not crimes involving moral turpitude. 8 U.S.C. § 1227(a)(2)(A)(ii) provides that
an alien is deportable if he is convicted of two crimes involving moral turpitude that are not part of
a single scheme of criminal misconduct. This court reviews de novo the BIA's legal determination
that a given crime involves moral turpitude. Okoro v. I.N.S., 125 F.3d 920, 926 (5th Cir. 1997). This
court has previously held that theft is a crime of moral turpitude. Id. Salgado makes no argument
that theft of services would not fall under this general rule. Accordingly, we will not disturb the
BIA’s determination that Salgado is removable.
Salgado next complains that his constitutional equal protection rights were violated when he
was denied cancellation of removal pursuant to 8 U.S.C. § 1229b. Salgado has not alleged an equal
protection violation. See Mahone v. Addicks Utility Dist. of Harris County, 836 F.2d 921, 933 (5th
Cir. 1988) (listing the elements of an equal protection challenge).
Salgado next argues that his equal protection and due process rights were violated by the
Immigration Judge and the BIA throughout his removal proceedings. Salgado’s conclusory
allegations of constitutional violations are unsupported by his brief. Accordingly, he has not
established that he has suffered a constitutional harm. See United States v. Holmes, 406 F.3d 337,
361 (5th Cir. 2005).

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Finally, Salgado argues that he received constitutionally ineffective assistance of counsel in
his removal proceedings. He has not, however, demonstrated that he was prejudiced by his counsel’s
performance. Accordingly, he is not entitled to relief on this claim. See Miranda-Lores v. I.N.S., 17
F.3d 84, 85 (5th Cir. 1994) (to prevail on a claim of ineffective assistance of counsel in removal
proceedings, petitioner must demonstrate substantial prejudice).
For the foregoing reasons, Salgado’s converted petition for review is DENIED.

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