Acosta v. Holder , 426 F. App'x 165 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-2311
ALEX ALBERTO ACOSTA,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: April 18, 2011 Decided: April 29, 2011
Before WILKINSON, MOTZ, and DAVIS, Circuit Judges.
Petition dismissed by unpublished per curiam opinion.
Mark A. Mancini, WASSERMAN, MANCINI AND CHANG, P.C., Washington,
D.C., for Petitioner. Tony West, Assistant Attorney General,
Linda S. Wernery, Assistant Director, Kerry A. Monaco, Office of
Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alex Alberto Acosta, a native and citizen of Honduras,
petitions for review of an order of the Board of Immigration
Appeals (“Board”) dismissing his appeal from the immigration
judge’s decision ordering him removed to Honduras. For the
reasons discussed below, we dismiss the petition for review.
Pursuant to 8 U.S.C. § 1252(a)(2)(C) (2006), we lack
jurisdiction, except as provided in 8 U.S.C. § 1252(a)(2)(D)
(2006), to review the final order of removal of an alien who is
removable for having been convicted of certain enumerated
crimes, including a crime of moral turpitude. Because Acosta
conceded before the immigration court that he is an alien who
was found removable for having been convicted of a crime of
moral turpitude, a concession which he does not challenge on
appeal, our review is limited to “constitutional claims or
questions of law.” 8 U.S.C. § 1252(a)(2)(C), (D); Mbea v.
Gonzales, 482 F.3d 276, 278 n.1 (4th Cir. 2007).
In his brief before the court, Acosta first contends
that the immigration judge abused his discretion in denying
Acosta’s motion for a continuance. Because Acosta merely
challenges the immigration judge’s factual determination that he
was not entitled to a continuance, we conclude that his argument
does not fall under the exception set forth in § 1252(a)(2)(D).
See Ogunfuye v. Holder, 610 F.3d 303, 307 (5th Cir. 2010)
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(“Ogunfuye’s argument that the [immigration judge] abused its
discretion by not granting her a continuance does not present a
constitutional claim or issue of law that this court has
jurisdiction to consider.”).
Acosta also argues that the Supreme Court’s decision
in Padilla v. Kentucky, 130 S. Ct. 1473, 1486 (2010), holding
that “counsel must inform her client whether his plea carries a
risk of deportation,” may be applied retroactively to his case
and contends that he is entitled to post-conviction relief in
state court. Although Acosta raises a question of law, we
conclude that it is not a colorable question of law as the
argument is not relevant to Acosta’s petition for review. See
Barco-Sandoval v. Gonzales, 516 F.3d 35, 40-41 (2d Cir. 2008)
(finding that a criminal alien must raise a colorable
constitutional claim or question of law in order for a federal
appellate court to have jurisdiction under § 1252(a)(2)(D)).
The Board’s decision clearly indicates that it denied
Acosta’s request for a continuance on the ground that Acosta’s
conviction was final for immigration purposes, notwithstanding
the fact that his motion for post-conviction relief remained
pending in state court. See Paredes v. Att’y Gen., 528 F.3d
196, 198-99 (3d Cir. 2008) (collecting cases and holding that
the pendency of post-conviction motions or other forms of
collateral attack “does not vitiate finality, unless and until
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the convictions are overturned as a result of the collateral
motions”). Neither the Board nor the immigration judge based
their decisions on the likelihood of Acosta’s success in state
court. Accordingly, the retroactivity of Padilla v. Kentucky is
simply not at issue in this appeal.
Because Acosta has failed to raise a colorable
constitutional claim or question of law, we find ourselves
without jurisdiction to consider his claims and therefore
dismiss the petition for review. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
PETITION DISMISSED
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