NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 10-4114 ___________

FELIX ANTONIO BLANCO MARTE, Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES, Respondent ____________________________________

On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A043-848-362) Immigration Judge: Honorable Margaret R. Reichenberg ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) March 14, 2011

Before: BARRY, JORDAN AND GARTH, Circuit Judges

(Opinion filed: March 15, 2011) ___________

OPINION ___________

PER CURIAM

Felix Antonio Blanco Marte, a citizen of the Dominican Republic, was admitted to

the United States in 1992, as a lawful permanent resident. In August 2009, Blanco Marte 1 was sentenced in New Jersey state court for two separate stalking convictions. 1 See

N.J.S.A. §§ 2C:12-10(b), (c), (d). The Government later charged Blanco Marte with

being removable as an alien who has been convicted of two moral turpitude crimes not

arising out of a single scheme of criminal misconduct. See Immigration and Nationality

Act (“INA”) § 237(a)(2)(A)(ii) [

(a)(2)(A)(ii)]. He conceded the charge

and applied for cancellation of removal pursuant to INA § 240A [8 U.S.C. §1229b].

Under that provision, the Attorney General may, in his discretion, cancel the removal of

an alien who (1) has been lawfully admitted for permanent residence for not less than five

years, (2) has continuously resided in the United States in any status for seven years, and

(3) has not been convicted of an aggravated felony. INA § 240A(a). Importantly, the

alien must also establish that he warrants relief as a matter of discretion. See Matter of

C-V-T-,

(BIA 1998) (noting that the IJ must “balance the adverse

factors evidencing the alien’s undesirability as a permanent resident with the social and

humane considerations presented in his (or her) behalf to determine whether the granting

of . . . relief appears in the best interest of this country.” (internal quotations omitted)).

The IJ found that Blanco Marte was statutorily ineligible for cancellation because

his convictions constituted aggravated felonies. In the alternative, the IJ found that even

1 In November 2007, Blanco Marte pleaded guilty in New Jersey state court to fourth- degree stalking. See N.J.S.A. § 2C:12-10(b). He was sentenced to probation. Blanco Marte continued to engage in similar behavior, however, and pleaded guilty in June 2009 to stalking the same victim in violation of an existing court order prohibiting the behavior, a third-degree offense. See N.J.S.A. §§ 2C:12-10(c) & (d). In August 2009, he was sentenced to 18 months of imprisonment for the initial offense, and to 3 years of 2 if Blanco Marte was statutorily eligible for cancellation, the “significant negative factors

militate against a favorable exercise of discretion in this case.” Those factors included

Blanco Marte’s two stalking convictions, an additional conviction and pending charge for

“Driving Under the Influence,” his lack of compassion for the stalking victim, and his

failure to seek counseling to address issues of “anger management and alcohol.” Blanco

Marte appealed, arguing that the IJ erred in denying his application for cancellation of

removal by “focus[ing] on [a] marginal issue” and by applying “an incorrect legal

standard.” He also contended that the IJ abused her discretion by not granting a

continuance so he could pursue post-conviction relief. The Board of Immigration

Appeals (“BIA”) dismissed the appeal, agreeing that Blanco Marte was not eligible for

cancellation of removal and that, in any event, the IJ correctly denied cancellation as a

matter of discretion. In particular, the BIA noted that the IJ had properly balanced

Blanco Marte’s “length of residence, employment history, family ties, and potential

hardship in the Dominican Republic . . . against his lack of clear-cut rehabilitation and the

repeated criminal actions.” The Board noted that Blanco Marte had not asked the IJ for a

continuance, and rejected his request for a stay of his appeal while he pursued collateral

relief in the New Jersey courts. Blanco Marte filed a timely petition for review.

The Government argues that we lack jurisdiction to hear Blanco Marte’s claims

because he is a criminal alien who seeks review of an order denying cancellation of

removal in the exercise of discretion. We generally do not have jurisdiction to review

imprisonment for the subsequent offense, to be served concurrently. 3 final orders of removal against aliens, like Blanco Marte, who are deemed removable

because they were convicted of two crimes involving moral turpitude. See INA

§ 242(a)(2)(C) [

(a)(2)(C)] (precluding jurisdiction where alien is

removable pursuant to § 237(a)(2)(A)(ii)). In addition, we lack jurisdiction to review

purely discretionary decisions, see INA § 242(a)(2)(B)(ii) [

(a)(2)(B)(ii)],

such as the “manner in which the BIA balanced the various positive and negative factors

which typically inform the exercise of its discretion under” INA § 240A. Cruz-Camey v.

Gonzales,

(1st Cir. 2007). Despite these jurisdiction-stripping

provisions, we may review “constitutional claims and questions of law presented in

petitions for review of final removal orders.” Papageorgiou v. Gonzales,

(3d Cir. 2005) (citing INA § 242(a)(2)(D) [

(a)(2)(D)]).

In his petition for review, Blanco Marte suggests that he qualifies for cancellation

of removal because he was not convicted of an aggravated felony. Whether Blanco

Marte’s stalking convictions qualify as an aggravated felony is a legal question which we

have jurisdiction to review. See Jeune v. Att’y Gen.,

(3d Cir. 2007).

Even if such a challenge was successful, however, we lack jurisdiction to review the

alternative determination that Blanco Marte did not deserve cancellation of removal as an

exercise of discretion. See Mendez-Moranchel v. Ashcroft,

, 178 (3d Cir.

2003). Furthermore, although we may consider whether the Board, in exercising its

discretion, violated a rule of law or a provision of the Constitution, Blanco Marte has not

raised any such allegations. See Chen v. Dep’t of Justice,

(2d Cir. 4 2006) (holding that a petition raises a question of law when it alleges a “fact-finding

which is flawed by an error of law” or an “abuse of discretion” that is “based on a legally

erroneous standard”).

Blanco Marte also claims that he “received an unfair hearing and was deprived of

his due process right[]s pursuant to the Fifth Amendment of the [C]onstitution because of

the [IJ’s] decision to deny the motion for a continuance.” The Board properly concluded,

however, that Blanco Marte never requested a continuance in Immigration Court. The

BIA also denied Blanco Marte’s request to stay his appeal “while a New Jersey court

considers vacating his convictions,”finding that he failed to demonstrate good cause. To

the extent that we have jurisdiction to review this determination, see Ogunfuye v. Holder,

(5th Cir. 2010) (holding that criminal alien’s argument that “the IJ

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.”), we conclude that the

Board did not abuse its discretion. See Paredes v. Att’y Gen.,

(3d

Cir. 2008) (holding that the pendency of post-conviction motion does not negate the

finality of convictions for immigration removal purposes).

For the foregoing reasons, we will grant the Government’s motion to dismiss in

part and deny the petition for review in part. Blanco Marte’s motion for appointment of

counsel is denied.

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