Altamirano-Lopez v. Gonzales, No. 04-60976. Summary Calendar.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtPer Curiam
Citation435 F.3d 547
PartiesHeriberto ALTAMIRANO-LOPEZ, Petitioner, v. Alberto R. GONZALES, United States Attorney General, Respondent,
Decision Date05 January 2006
Docket NumberNo. 04-60976. Summary Calendar.
435 F.3d 547
Heriberto ALTAMIRANO-LOPEZ, Petitioner,
v.
Alberto R. GONZALES, United States Attorney General, Respondent,
No. 04-60976. Summary Calendar.
United States Court of Appeals, Fifth Circuit.
January 5, 2006.

Page 548

Daniel Jay Hurtado, Jenner & Block, Chicago, IL, Javier N. Maldonado, Lawyers Committee for Civ. Rights, San Antonio, TX, for Petitioner.

Thomas Ward Hussey, Dir., Victor M. Lawrence, David J. Kline, U.S. Dept. of Justice, Civ. Div., OIL, Washington, DC, E.M. Trominski, Dist. Dir., U.S. INS, Harlingen, TX, Caryl G. Thompson, U.S. INS, Attn: Joe A. Aguilar, New Orleans, LA, for Respondent.

Petition for Review from an Order of the Board of Immigration Appeals.

Before SMITH, GARZA and PRADO, Circuit Judges.

PER CURIAM:


The question presented in this case is whether the Board of Immigration Appeals ("BIA") erred by affirming the Immigration Judge's ("IJ") denial of Heriberto Ismael Altamirano Lopez's "Altamirano" motion to reopen removal proceedings.1 Because we find that the

Page 549

motion was properly denied, we DENY the petition for review and AFFIRM the judgement of the BIA.

I. BACKGROUND

Altamirano, a native Nicaraguan, entered the United States, without inspection, near Laredo, Texas on March 19, 2004. Consequently, he was charged criminally with a violation of 8 U.S.C. § 1325(a)(1).2 Upon entry of his guilty plea, Petitioner was sentenced to thirty days imprisonment, and was remanded to the custody of the Attorney General.

On April 5, 2004, while serving his sentence, Altamirano executed a stipulated request for an order to be removed from the United States, which was also signed by the Department of Homeland Security. The stipulation was submitted to the Immigration Court, which issued the removal order on April 9, 2004.

On May 11, 2004, Petitioner filed a motion to reopen his removal proceeding, asserting that he did not voluntarily, knowingly, and intelligently execute the stipulated request for removal. The IJ held a video-conference hearing with Altamirano and 19 other detainees who asserted similar claims. Petitioner alleges that, at the hearing, the IJ favored questioning Altamirano himself, and refused to allow Petitioner's attorney to question him. Additionally, Altamirano claims that the IJ ended his testimony before he finished speaking. Furthermore, Petitioner maintains that the IJ took into account a sworn affidavit submitted by a deportation officer after the close of the hearing. In the affidavit, the officer purported that he had a conversation with Altamirano regarding his understanding of the stipulated waiver. Finally, Altamirano complains that the IJ failed to create and preserve a record of the hearing.

After the hearing, the IJ denied Altamirano's motion, finding that there was no evidence to support the claim that Altamirano was not advised of his rights or had problems which would minimize his comprehension.

On September 30, 2004, the BIA adopted and affirmed the IJ's decision. The BIA acknowledged that Altamirano had been advised of his rights in writing, in Spanish, prior to signing the stipulated request upon which his removal order was based, and that the record was lacking of any evidence that Altamirano did not voluntarily, knowingly, and intelligently sign the request. Moreover, the BIA noted that the stipulated request itself contains adequate advice and warnings in both English and Spanish.

Petitioner appeals, claiming that when it considered this motion to reopen, the BIA erred in affirming the IJ's conduct that he alleges deprived him of a fair hearing.

II. DISCUSSION

While this Court reviews a denial of a motion to reopen under a "highly...

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89 practice notes
  • Darby v. Attorney Gen. of the U.S., No. 20-2107
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • June 17, 2021
    ...Sessions , 886 F.3d 184, 188 (1st Cir. 2018) ; Dekoladenu v. Gonzales , 459 F.3d 500, 508 (4th Cir. 2006) ; Altamirano-Lopez v. Gonzales , 435 F.3d 547, 550–51 (5th Cir. 2006) ; Ashki v. INS , 233 F.3d 913, 920–21 (6th Cir. 2000) ; Iglesias v. Mukasey , 540 F.3d 528, 531 (7th Cir. 2008) ; B......
  • Trisha A. v. Dep't of Child Safety, No. CV-18-0178-PR
    • United States
    • Supreme Court of Arizona
    • August 15, 2019
    ...even if [the moving party] had been eligible for it" (alteration in original) (quoting 446 P.3d 387 Altamirano-Lopez v. Gonzales , 435 F.3d 547, 550 (5th Cir. 2006) )). This conclusion is bolstered by the fact that, unlike constitutional claims, we review the denial of a motion to set aside......
  • Hernandez v. Garland, 19-60274
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 13, 2021
    ...sponte, regardless of the timing issue, this court is unable to review such a discretionary determination. Altamirano-Lopez v. Gonzales , 435 F.3d 547, 550 (5th Cir. 2006) ("[T]he denial of discretionary relief does not rise to the level of a constitutional violation even if [the moving par......
  • Hernandez v. Garland, 19-60274
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 13, 2021
    ...sponte, regardless of the timing issue, this court is unable to review such a discretionary determination. Altamirano-Lopez v. Gonzales, 435 F.3d 547, 550 (5th Cir. 2006) ("[T]he denial of discretionary relief does not rise to the level of a constitutional violation even if [the moving part......
  • Request a trial to view additional results
89 cases
  • Darby v. Attorney Gen. of the U.S., No. 20-2107
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • June 17, 2021
    ...Sessions , 886 F.3d 184, 188 (1st Cir. 2018) ; Dekoladenu v. Gonzales , 459 F.3d 500, 508 (4th Cir. 2006) ; Altamirano-Lopez v. Gonzales , 435 F.3d 547, 550–51 (5th Cir. 2006) ; Ashki v. INS , 233 F.3d 913, 920–21 (6th Cir. 2000) ; Iglesias v. Mukasey , 540 F.3d 528, 531 (7th Cir. 2008) ; B......
  • Trisha A. v. Dep't of Child Safety, No. CV-18-0178-PR
    • United States
    • Supreme Court of Arizona
    • August 15, 2019
    ...even if [the moving party] had been eligible for it" (alteration in original) (quoting 446 P.3d 387 Altamirano-Lopez v. Gonzales , 435 F.3d 547, 550 (5th Cir. 2006) )). This conclusion is bolstered by the fact that, unlike constitutional claims, we review the denial of a motion to set aside......
  • Hernandez v. Garland, 19-60274
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 13, 2021
    ...sponte, regardless of the timing issue, this court is unable to review such a discretionary determination. Altamirano-Lopez v. Gonzales , 435 F.3d 547, 550 (5th Cir. 2006) ("[T]he denial of discretionary relief does not rise to the level of a constitutional violation even if [the moving par......
  • Hernandez v. Garland, 19-60274
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 13, 2021
    ...sponte, regardless of the timing issue, this court is unable to review such a discretionary determination. Altamirano-Lopez v. Gonzales, 435 F.3d 547, 550 (5th Cir. 2006) ("[T]he denial of discretionary relief does not rise to the level of a constitutional violation even if [the moving part......
  • Request a trial to view additional results

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