Matthew Chacko v. Attorney General United States ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-1871
___________
MATTHEW KOSHY CHACKO,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A090-590-908)
Immigration Judge: Honorable Margaret R. Reichenberg
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 27, 2013
Before: SCIRICA, VANASKIE and COWEN, Circuit Judges
(Opinion filed: April 11, 2013)
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OPINION
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PER CURIAM
Matthew Koshy Chacko petitions for review of a decision of the Board of
Immigration Appeals. For the reasons below, we will deny the petition for review.
Chacko entered the United States in 1981 as a visitor and became a permanent
resident in 1989. In 2007, he was convicted of attempted criminal possession of a forged
instrument in New York and was sentenced to one and one-half to three years in prison.
In September 2010, he was charged as removable as an aggravated felon. Represented by
counsel, he did not file any applications for relief from removal. In June 2011, Chacko
filed a post-conviction petition in the state court in New York. He argued that he had not
been advised of the immigration consequences of his guilty plea. In October 2011, the IJ
found Chacko removable, denied his request for a continuance, and ordered Chacko
removed to India. In March 2012, the BIA dismissed his pro se appeal, and Chacko filed
a pro se petition for review. After Chacko filed a pro se opening brief, counsel made an
appearance and filed a reply brief. The Government has filed a motion to dismiss.
Chacko does not dispute that his conviction is an aggravated felony. Instead, he
seeks to challenge the validity of his conviction. However, his conviction is final for
immigration purposes until it is overturned. Paredes v. Att’y Gen., 528 F.3d 196, 198-99
(3d Cir. 2008). Because Chacko is an aggravated felon, we lack jurisdiction to review the
denial of his claims for relief except to the extent he raises legal and constitutional
claims. See 8 U.S.C. §§ 1252(a)(2)(C)&(D).
Chacko argues that he was denied due process when the IJ denied his motion for a
continuance. Before the BIA, Chacko argued that by denying a continuance, the IJ
denied his due process rights to prepare for his removal hearing and acquire evidence of
post-conviction relief to challenge his removability. We exercise de novo review of
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procedural due process claims. Chacko was entitled to a full and fair hearing of his claim
and a reasonable opportunity to present evidence. Singh v. Gonzales, 432 F.3d 533, 541
(3d Cir. 2006). The IJ concluded that Chacko had not shown good cause for a
continuance. At the hearing in October 2011, the IJ noted that Chacko had been before
the IJ since June 2011 and time had been granted for him for find an attorney and obtain
his conviction records. Time was then granted for Chacko to object to his conviction
records and to decide whether he wanted to file for relief from removal. The IJ
concluded that post-conviction relief was both collateral and speculative. On appeal, the
BIA agreed. The IJ’s denial of Chacko’s request for a continuance did not deny him due
process. Chacko has not shown that he was denied a fair hearing or a reasonable
opportunity to present evidence.1
Chacko also contends that he was denied his due process rights because he was
denied visits by his immigration attorney while he was before the IJ, denied access to the
law library while in jail, and put in solitary confinement at the time his brief to the BIA
was due. His attorneys did not raise any issues related to their ability to meet with
Chacko before the IJ. As for his claim that he was denied access to the law library and
put in solitary confinement, we note that the BIA granted Chacko an extension of time to
1
Chacko also argues that the transcript for a hearing on July 14, 2011, is missing from
the record. However, he does not describe what took place at that hearing such that the
absence of the transcript prevented him from having a fair hearing. In his brief before the
BIA, he stated that on July 14, 2011, the Government submitted additional documents
and the IJ continued the hearing to allow Chacko’s attorneys to review the documents.
A.R. at 12.
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file his brief based on these allegations.2 After his second request for an extension was
denied, Chacko did not raise these issues in his brief before the BIA. A.R. at 10-16; Pet.
for review at 6. Because these arguments were not presented to the BIA, they are
unexhausted. We lack jurisdiction to review unexhausted arguments. Abdulrahman v.
Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003); 8 U.S.C. § 1252(d)(1).
In his counseled reply brief, Chacko argues that the Supreme Court’s decision in
Padilla v. Kentucky, 559 U.S. 356 (2010), makes post-conviction motions ancillary to
removal proceedings and not collateral. He argues that the BIA’s policies and procedures
for evaluating continuances for ancillary proceedings, such as pending visa petitions and
adjustment of status applications, should apply to continuances for post-conviction
collateral relief. These arguments were also not presented to the BIA. As discussed
above, we lack jurisdiction to review unexhausted arguments.
For the above reasons, we will deny the petition for review. The Government’s
motion to dismiss is denied. The Government’s motion to supplement the record is
denied.
2
The BIA noted that it generally does not grant more than one extension and Chacko
should assume he would not receive another extension. A.R. at 61. The BIA denied his
subsequent request for another extension of time because he had not shown extraordinary
circumstances. A.R. at 54.
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