Juan Galvan Grimaldo v. Attorney General United States ( 2016 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 15-2867
___________
JUAN GUADALUPE GALVAN GRIMALDO,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A078-886-828)
Immigration Judge: Honorable Walter A. Durling
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 3, 2016
Before: CHAGARES, KRAUSE and GREENBERG, Circuit Judges
(Opinion filed: April 1, 2016)
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OPINION*
___________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Juan Guadalupe Galvan Grimaldo petitions from an order of the Board of
Immigration Appeals (“BIA”), which dismissed his appeal from an Immigration Judge’s
(“IJ”) final removal order. We will deny the petition for review.
Petitioner, a native and citizen of Mexico, entered the United States at an unknown
date and location, but in 2002 adjusted his status to that of a lawful permanent resident.
In 2010, he was convicted in federal court of conspiracy to distribute more than 50 grams
of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. He
was initially sentenced to 87 months in prison, but in February 2015 the sentence was
reduced to 70 months in prison. Petitioner was charged with being removable on two
bases: (1) INA § 237(a)(2)(B)(i) [8 U.S.C. § 1227(a)(2)(B)(i)] (controlled substance
violation); and (2) INA § 237(a)(2)(A)(iii) [8 U.S.C. § 1227(a)(2)(A)(iii)] (conviction of
an aggravated felony).1
Petitioner appeared pro se2 before the IJ, who sustained the charges and ordered
him removed. Although Petitioner had not presented the IJ with any applications for
1
The Notice to Appear charged that Petitioner’s conviction was an offense relating to
drug trafficking and thus an aggravated felony. See INA § 101(a)(43)(B) & (U) [8
U.S.C. § 1101(a)(43)(B) & (U)].
2
Petitioner was given the “free lawyer list” on March 17. He was granted one
continuance to find a lawyer, but he was not able to do so. When the hearing reconvened
on May 12, the IJ denied Petitioner’s request for a continuance to seek relief from his
criminal conviction. To the extent Petitioner alleges that the denial of his motion for
continuance resulted in a due process violation, we find no error, as Petitioner has not
demonstrated how he was prejudiced by the failure to grant a continuance. See Jarbough
v. Att’y Gen., 483 F.3d 184, 192 (3d Cir. 2007) (to establish due process violation,
petitioner must show he was deprived of right to full and fair hearing and must show
substantial prejudice); Paredes v. Att’y Gen., 528 F.3d 196, 198-99 (3d Cir. 2008)
2
relief, on appeal he argued that the IJ should have granted him cancellation of removal
under INA § 240A(b)(1) [8 U.S.C. § 1229b(b)(1)], or a waiver under INA § 212(c) or (h)
[8 U.S.C. § 1182(c) or (h)]. The BIA explained that Petitioner was ineligible for any
relief because of his conviction for an aggravated felony. The BIA also noted
Petitioner’s statement that the IJ did not “want to see and hear” during his removal
proceedings. The BIA stated that Petitioner had not demonstrated that the IJ erred in any
way in evaluating his evidence or conducting his hearings. The BIA also noted that
Petitioner had not demonstrated that he had been prejudiced in any way.3 Petitioner
timely filed a petition for review.
In his brief, Petitioner challenges only the agency’s failure to grant him a waiver
under INA § 212(h). We have limited jurisdiction over this petition for review, as
Petitioner was convicted of a controlled substance violation, which was also an
aggravated felony.4 See 8 U.S.C. § 1252(a)(2)(C). Further, INA § 212(h) provides that
“[n]o court shall have jurisdiction to review a decision of the Attorney General to grant or
deny a waiver under this subsection.” 8 U.S.C. § 1182(h); see also 8 U.S.C.
(pendency of post-conviction petition does not affect validity of conviction for removal
purposes).
3
The BIA also properly noted that the IJ had no authority to grant general humanitarian
relief.
4
Petitioner did not challenge before the agency and does not challenge here his
aggravated felony status. See Chen v. Ashcroft, 381 F.3d 221, 235 (3d Cir. 2004) (issue
not raised in opening brief is waived). In any event, we agree with Respondent that
Petitioner’s conviction constitutes both a controlled substance violation and an
aggravated felony. See Respondent’s Br. at 11-12.
3
§ 1252(a)(2)(B)(i). While we retain jurisdiction to consider colorable constitutional
claims or questions of law, see 8 U.S.C. § 1252(a)(2)(D); Kaplun v. Att’y Gen., 602 F.3d
260, 265 (3d Cir. 2010), the only legal issue Petitioner raises is irrelevant.5 Petitioner is
statutorily ineligible for § 212(h) relief because such relief only applies if a conviction
“relates to a single offense of simple possession of 30 grams or less of marijuana.” INA
§ 212(h). Petitioner’s conviction was for conspiracy to distribute methamphetamines, not
for simple possession of marijuana.
For the foregoing reasons, we will deny the petition for review.6
5
Petitioner argues that the agency erred in finding him ineligible for a § 212(h) waiver
because of his post-entry adjustment of status. The agency did not deny relief on that
basis.
6
Petitioner’s request to be released on bond pending a decision, contained in his brief, is
denied as moot.
4