Porfirio Martinez v. Attorney General of the United States

NON PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No: 06-2039
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PORFIRIO MARTINEZ,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
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Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA No. A41-431-000)
Immigration Judge Walter A. Burling
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Submitted Under Third Circuit LAR 34.1(a)
September 25, 2007
Before: AMBRO, JORDAN and ROTH, Circuit Judges.
(Filed: October 29, 2007)
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OPINION OF THE COURT
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1 8 U.S.C. § 1227(a)(2)(B)(i) states:
[A]ny alien who at any time after admission has been convicted of a violation of
(or a conspiracy or attempt to violate) any law or regulation of a State, the United
States, or a foreign country relating to a controlled substance ... other than a single
offense involving possession for one’s own use of 30 grams or less of marijuana, is
deportable.
1
JORDAN, Circuit Judge.
Porfirio Martinez challenges a final order of the Board of Immigration Appeals
(“BIA”) that dismissed his appeal of the Immigration Judge’s (“IJ”) oral decision
ordering him removed to the Dominican Republic. The BIA dismissed that appeal
because it determined it lacked jurisdiction. For the following reasons, we will deny
Martinez’s petition for review.
I.
Martinez is a native and citizen of the Dominican Republic who was admitted to
the United States in November of 1988 as a lawful permanent resident. On February 9,
2005, he was convicted in New York for possession of cocaine in the third degree in
violation of Section 220.16(12) of the New York State Penal Law. On May 27, 2005, the
Immigration and Naturalization Service notified Martinez that he was subject to removal
from the United States pursuant to 8 U.S.C. § 1227(a)(2)(B)(i) because he had been
convicted under a law relating to a controlled substance.1 At a subsequent hearing
Martinez’s counsel notified the IJ of Martinez’s intent to seek cancellation of removal

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2 Under 8 U.S.C. § 1229b(a), the Attorney General may cancel removal of an alien
deemed deportable from the United States “if the alien (1) has been an alien lawfully
admitted for permanent residence for not less than 5 years, (2) has resided in the United
States continuously for 7 years after having been admitted in any status, and (3) has not
been convicted of any aggravated felony.”
3 According to 8 U.S.C. § 1229b(d)(1), “any period of continuous residence or
continuous presence in the United States shall be deemed to end ... when the alien has
committed an offense ... that renders the alien ... removable from the United States under
section 1227(a)(2) ... of this title ... .”
4 The relevant exchange between Martinez’s counsel and the IJ is as follows:
MR CANDALAKOS TO JUDGE
Okay. I spoke to Mr. Martinez with the assistance of an interpreter, and I
explained his legal options in his case, and after explaining them to him and
asking him twice, he told me that he wishes to accept a final order.
JUDGE TO MR. CANDALAKOS
All right. And designates Dominican Republic?
MR. CANDALAKOS TO JUDGE
2
pursuant to 8 U.S.C. § 1229b.2 On August 15, 2005, the Department of Homeland
Security notified Martinez that, in addition to the February 9, 2005 conviction, he was
subject to removal for another conviction for possession of a controlled substance in the
third degree that occurred on January 9, 1993. On October 4, 2005, in an oral opinion,
the IJ ruled that Martinez was not eligible for cancellation of removal pursuant to 8
U.S.C. § 1229b because of his January 6, 1993 conviction.3 Martinez’s counsel then
asked for an opportunity to speak with Martinez about other relief for which Martinez
may have been eligible. After speaking with Martinez through an interpreter, Martinez’s
counsel told the IJ that, after explaining to Martinez his legal options and “asking him
twice,” Martinez had informed counsel that he wished to accept the IJ’s final order of
removal.4

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Yes.
JUDGE TO MR. CANDALAKOS
All right.
(Administrative Record [“AR”] at 57-58.)
3
After the hearing, Martinez obtained new counsel and appealed the IJ’s decision
that he was ineligible for cancellation of removal. In that appeal, Martinez did not argue
that his decision to accept the IJ’s final order was not a knowing and intelligent one, nor
did he argue that the hearings before the IJ were fundamentally unfair such that they
amounted to a violation of due process. On February 22, 2006, the BIA dismissed
Martinez’s appeal, stating that the record reflected that Martinez, through his counsel, had
waived his right to appeal. Therefore, according to the BIA, “the Immigration Judge’s
decision became administratively final upon the respondent’s waiver of the right to
appeal, and the Board lacks jurisdiction over this case.” (AR 2.) Martinez now argues
that the BIA erred in its determination that it lacked jurisdiction because the IJ “never
advised [Martinez], through an interpreter, that his attorney made a representation to the
court that [Martinez] waived his appellate rights prior to ending the removal proceeding.”
(Martinez’s Brief at 11.)
II.
We have jurisdiction under 8 U.S.C. § 1252 to review final orders of the BIA. We
review any constitutional and legal questions raised by a petitioner de novo. Alaka v.
Att’y Gen., 456 F.3d 88, 94 n.8 (3d Cir. 2006) (citing Ilchuk v. Att'y Gen., 434 F.3d 618,
621 (3d Cir.2006)). According to 8 C.F.R. § 1003.1(d)(2)(i)(G), the BIA “may

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4
summarily dismiss any appeal or portion of any appeal in any case in which ... [t]he
appeal is ... barred by an affirmative waiver of the right of appeal that is clear on the
record.” Here, the record clearly shows that Martinez, through his counsel, waived his
right to appeal by accepting the final order of the IJ. Accordingly, the BIA did not err in
its conclusion that it lacked jurisdiction to entertain Martinez’s appeal. See also Matter of
Shih, 20 I. & N. Dec. 697, 698-99 (1993) (holding that once the petitioner waived his
right to appeal, the IJ’s decision became final and the BIA lacked jurisdiction to
adjudicate the petitioner’s claim).
Martinez contends, however, that the BIA erred in its determination that it lacked
jurisdiction because the IJ never told him through an interpreter that his attorney was
waiving his appellate rights. This argument presents two related and overlapping
questions. First, whether the IJ violated Martinez’s procedural due process rights by not
following the agency’s own rules and regulations according to Matter of Exilus, 18 I. &
N. Dec. 276 (1982); and second, whether the IJ violated Martinez’s due process rights
generally by accepting Martinez’s waiver of his right to appeal through his attorney and
not advising Martinez of the consequences.
With respect to the first question, we do not have jurisdiction to review a due
process claim not presented to the BIA if that claim “involves only a procedural error
correctable through the administrative process,” Alleyne v. INS, 879 F.2d 1177, 1183 n.10
(3d Cir. 1989), thereby providing the agency an opportunity to “correct its own errors
before judicial intervention.” Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d Cir. 2005)

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5 The record indicates that a Spanish interpreter was present during the entire hearing.
(AR at 50.) It is not clear from the record, however, whether or why the interpreter who
was in attendance stopped translating during the colloquy in question, though that is
basically what Martinez asserts.
5
(quoting Zara v. Ashcroft, 383 F.3d 927, 931 (9th Cir. 2004)). The record indicates that
Martinez never argued to the BIA that the IJ violated the agency’s internal rules and
procedures by not providing an interpreter during the portion of the hearing where
Martinez’s counsel accepted the IJ’s final order. Assuming that there was not
simultaneous translation of the colloquy between the IJ and Martinez’s counsel,5 the BIA
needs to have an opportunity to determine whether that action violated the agency’s rules
and procedures, and, if it did, to correct that error. Accordingly, we conclude that we
have no jurisdiction to review that issue.
With respect to the second question, whether the IJ violated Martinez’s due
process rights by accepting Martinez’s waiver of his right to appeal through his attorney
and not advising Martinez of the consequences of that waiver, we conclude that there was
no violation. A due process violation in removal proceedings requires a showing of
fundamental unfairness. United States v. Torres, 383 F.3d 92, 103-04 (3d Cir. 2004).
There was nothing fundamentally unfair about these proceedings. Martinez had an
opportunity to discuss with his attorney through an interpreter his legal options after the IJ
ruled that he was not eligible for cancellation of removal. His attorney stated to the IJ in
Martinez’s presence that, after “asking him twice,” Martinez decided to accept the final
order of the IJ. Moreover, although the record demonstrates an interpreter was available

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6
at the hearing, Martinez did not object to the alleged lack of translation during that
portion of the proceedings.
Martinez had been living in the United States since November of 1988, nearly
seventeen years. It does not take a perfect command of the English language to have a
basic understanding of the exchange that took place between the IJ and Martinez’s
counsel. After Martinez’s counsel told the IJ that Martinez wished to accept the IJ’s final
order, the IJ responded, “All right. And designates Dominican Republic?”, to which
counsel replied, “Yes.” (AR at 57-58.) This is not a complicated exchange, particularly
as it immediately followed the conversation Martinez had with his lawyer through a
translator – a conversation that Martinez does not disavow. Surely Martinez understood
that what he had just authorized his attorney to say is what the attorney in fact said, and
that the IJ responded by accepting the waiver.
Accordingly, under these circumstances, Martinez has failed to demonstrate that
these proceedings violated his right to due process.
III.
Therefore, for the foregoing reasons, we will deny the petition for review.

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