Cristiano v. Immigration & Naturalization Service

115 F. App'x 349

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 9, 2004
• Docket: No. 04-55255
• Status: Published

Opinion

MEMORANDUM

**

Horacio Patricio Cristiano, a native and citizen of Argentina, appeals pro se the district court’s judgment denying his 28 U.S.C. § 2241 petition. Under the circumstances present in this case, we find that transfer to the Court of Appeals is appropriate under 28 U.S.C. § 1631, cf. Acevedo-Carranza v. Ashcroft, 371 F.3d 539, 541-43 (9th Cir.2004). Accordingly, we vacate the district court’s judgment, transfer the petition, and treat appellant’s section 2241 petition as a petition for review. After consideration on the merits, we deny the petition for review.

Cristiano first contends that he is not subject to removal because he is a lawful permanent resident. The record belies his contention and demonstrates that Cristiano’s application to become a lawful permanent resident was never adjudicated.

Cristiano next contends that he is entitled to the Immigration and Nationality Act § 212(c) waiver. However, because Cristiano was not a lawful permanent resident, this relief is unavailable to him. See 8 U.S.C. § 1182(c) (repealed).

Cristiano finally contends that he is entitled to relief under the Convention Against Torture. Substantial evidence supports the Immigration Judge’s conclusion that Cristiano’s participation during the “dirty war” likely will subject him to prosecution, rather than persecution or torture. See Kamalthas v. INS, 251 F.3d 1279, 1280, 1284 (9th Cir.2001). Cristiano failed to demonstrate that it is more likely than not that he will be tortured if returned to Argentina. See id.

VACATED, TRANSFERRED, and PETITION FOR REVIEW DENIED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.