NELSON ACOSTA-ROQUE, AKA Victor Antonio Pecheca-Aromboles v. ERIC H. HOLDER, Jr., Attorney General

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Morris S. Arnold, Senior Circuit Judge for the Eighth
Circuit, sitting by designation.
* NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NELSON ACOSTA-ROQUE, AKA
Victor Antonio Pecheca-Aromboles,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 11-70705
Agency No. A073-523-551
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted September 10, 2012
Las Vegas, Nevada
Before: ARNOLD**, RAWLINSON, and BYBEE, Circuit Judges.
Nelson Acosta-Roque petitions for review of a final order by the Board of
Immigration Appeals (BIA) finding him removable as a “criminal alien.” See
8 U.S.C. § 1182(a)(2). He challenges the BIA’s factual finding that he is Victor
FILED
OCT 24 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2
Antonio Pecheca-Aromboles, who was convicted in 1991 of delivery of a
controlled substance in Pennsylvania and removable for that conviction.
We have jurisdiction over the removal of criminal aliens only as to issues
involving “constitutional claims or questions of law.” 8 U.S.C. § 1252(a)(2)(C),
(a)(2)(D). But we retain jurisdiction to determine our jurisdiction, which in this
case requires us to review the BIA's finding that Mr. Acosta-Roque is a criminal
alien. See Lopez-Jacuinde v. Holder, 600 F.3d 1215, 1217 (9th Cir. 2010). In so
doing, we must determine whether substantial evidence supported the BIA's
finding “by clear and convincing evidence” that Mr. Acosta-Roque and
Mr. Pecheca-Aromboles are the same person. See 8 U.S.C. §§ 1229a(c)(3)(A),
1252(b)(4)(B); Nakamoto v. Ashcroft, 363 F.3d 874, 882 (9th Cir. 2004).
Mr. Acosta-Roque argues that the BIA’s reliance on fingerprint evidence to
determine his identity was error. But he has given us no reason to disturb the
BIA’s determination, given that scientists and courts have regarded such evidence
as reliable for upwards of a century. See United States v. Calderon-Segura,
512 F.3d 1104, 1108-09 (9th Cir. 2008). When, as here, the fingerprints “were
exemplars taken under controlled circumstances and were complete, not
fragmented,” fingerprint evidence is in fact highly reliable. Id. at 1109. Although
the fingerprint examiner in this case may have been less than cautious in her

-- 2 of 3 --

3
testimony, the immigration judge and the BIA did not err in relying upon it, given
the examiner’s experience and the fact that another technician corroborated the
findings. Mr. Acosta-Roque has not shown that “no reasonable factfinder” would
find that the government proved by clear and convincing evidence that he was a
criminal alien under § 1182(a)(2). See Nakamoto, 363 F.3d at 881-82. Therefore,
because Mr. Acosta-Roque’s petition concerns neither a question of law nor a
constitutional claim, we do not have jurisdiction to review the BIA’s final order of
removal.
DISMISSED FOR LACK OF JURISDICTION.

-- 3 of 3 --