Eddy Raphael Galeano v. U.S. Attorney General

Case: 16-16856 Date Filed: 09/29/2017 Page: 1 of 10 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 16-16856 Non-Argument Calendar ________________________ Agency No. A206-412-860 EDDY RAPHAEL GALEANO, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ Petition for Review of a Decision of the Board of Immigration Appeals ________________________ (September 29, 2017) Before JORDAN, ROSENBAUM, and ANDERSON, Circuit Judges. PER CURIAM: Case: 16-16856 Date Filed: 09/29/2017 Page: 2 of 10 Eddy Galeano, through counsel, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”) order denying his application for temporary protected status under INA § 244(a)(1), 8 U.S.C. § 1254a(a)(1). On appeal, Galeano argues that it was improper for the IJ to consider facts from a vacated conviction in making a particularly serious crime determination and that he was not a danger to the community because his sentence did not require satellite-based monitoring. He argues that the BIA played an improper prosecutorial role by having ex parte communications with the IJ. He also argues that his conviction for misdemeanor sexual battery under North Carolina law cannot be considered a particularly serious crime that disqualifies him from receiving temporary protected status. I. At the outset, we must consider whether we have jurisdiction. Galeano asserts that the IJ lacked subject matter jurisdiction over him because a Government attorney below stated that the Department of Homeland Security needed to adjudicate the initial application. He appears to argue that the IJ then proceeded in the case without sending it back and thus lacked subject matter jurisdiction. 2 Case: 16-16856 Date Filed: 09/29/2017 Page: 3 of 10 The Government did not need to issue a new Notice to Appear when the crime underlying the charge in the original Notice to Appear was vacated because the Notice to Appear, and Galeano’s removal, were based on his unlawful presence, not the conviction, and that was contained in the initial Notice to Appear. Thus, because the decision to remove was not based on that crime, the fact that it was vacated did not affect the IJ’s subject matter jurisdiction. We also consider whether we have jurisdiction over arguments raised by Galeano for the first time in his motion to reopen and reconsider the BIA’s decision, for which he did not file a separate petition for review. A “petition for review must be filed not later than 30 days after the date of the final order of removal.” INA § 242(b)(1), 8 U.S.C. § 1252(b)(1). A deportation order is final and reviewable when issued. Stone v. INS, 514 U.S. 386, 405 (1995); Jaggernauth v. U.S. Att’y Gen., 432 F.3d 1346, 1350 (11th Cir. 2005). If an alien chooses, he may seek reconsideration of the BIA’s order within 90 days of its issuance. Stone, 514 U.S. at 405-06. The denial of a motion for reconsideration is a final order for purposes of the INA. Id. at 401-02. Two separate petitions are required to review two separate final orders. ...

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