NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 11-1262 ___________

CONG A. CUN, AKA Sang, Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES, Respondent ____________________________________

On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A046-091-191) Immigration Judge: Honorable Andrew Arthur ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) July 22, 2011

Before: SCIRICA, SMITH and VANASKIE Circuit Judges

(Opinion filed: August 1, 2011 )

___________

OPINION ___________

PER CURIAM

Petitioner Cong A. Cun, proceeding pro se, seeks review of a final order of

removal. For the reasons that follow, we will deny his petition for review. I.

Cong A. Cun, a native and citizen of Vietnam, became a lawful permanent

resident of the United States in May 1997. In July 2009, Cun was convicted in federal

district court of one count of conspiracy to distribute marijuana (

) and

two counts of aiding and abetting the distribution of marijuana (

(a)(1),

(b)(1)(D) and

), and was sentenced to forty-one months of incarceration.

He was then charged with removability under

(a)(2)(A)(iii) (convicted of

an aggravated felony as defined by § 1101(a)(43)(B) and (U)). Cun appeared before the

Immigration Judge (“IJ”) in January 2010 and conceded removal; he waived appeal from

that decision.

In October 2010, Cun filed a motion to reopen to apply for cancellation of removal

pursuant to 8 U.S.C. § 1229b(a). The IJ denied the motion after determining that Cun

was statutorily ineligible for cancellation of removal because he has been convicted of an

aggravated felony. The Board of Immigration Appeals (“BIA”) agreed, and dismissed

his appeal. Cun filed a timely notice of appeal.

II.

We have jurisdiction under

(a) to review the denial of a motion to

reopen. We review such denials for abuse of discretion. Liu v. Att’y Gen.,

(3d Cir. 2009). Under this standard, we may reverse the BIA’s decision only if it is

“arbitrary, irrational, or contrary to law.” Guo v. Ashcroft,

(3d Cir.

2004). 2 III.

In order for a lawful permanent resident to be eligible for cancellation of removal,

he must have maintained that status for a minimum of five years, resided in the United

States for seven continuous years, and not been convicted of an aggravated felony. 8

U.S.C. § 1229b(a). Cun argues that the BIA did not apply the categorical approach set

forth in Taylor v. United States,

(1990), to determine whether his

conviction qualified as an aggravated felony. The claim is without merit. In denying his

request for a motion to reopen to apply for cancellation, the IJ applied Singh v. Ashcroft,

(3d Cir. 2004), in which this Court determined that Taylor’s

categorical approach applies in assessing whether an alien’s conviction is an aggravated

felony. The BIA agreed with the IJ’s findings. Accordingly, Cun fails to demonstrate

any error.

Cun next claims that the BIA improperly relied on a sentencing factor,

(b), to establish his removability. The government argues persuasively that we lack

jurisdiction to review the determination that Cun is removable because he waived his

appeal from the IJ’s original removal order, and he did not exhaust his administrative

remedies. See

(d)(1); Bonhometre v. Gonzales,

(3d

Cir. 2005). In any event, as described below, any potential error is harmless, as Cun’s

conviction under § 841(a) constitutes an aggravated felony.

Finally, Cun claims that the BIA improperly relied on his admission that he was

convicted of an aggravated felony, or on his “admission to the facts in

3 841(b),” in concluding that he had been convicted of an aggravated felony. This claim is

without merit. Cun conceded before the IJ that he had been convicted of the crimes as

alleged. Under

(a)(43)(B), “illicit trafficking in a controlled substance . .

., including a drug trafficking crime (as defined in section 924(c) of Title 18)” is an

aggravated felony. Cun’s conviction pursuant to

(a)(1) clearly qualifies.

See

(c) (defining “drug trafficking crime” to include “any felony

punishable under the Controlled Substances Act (

et seq.)”).

IV.

For the foregoing reasons, we will deny the petition for review.

4