NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 11-3276 ___________

ALWYN PAUL THOMAS,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent ____________________________________

On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A078-493-620) Immigration Judge: Honorable Walter A. Durling ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) February 16, 2012

Before: AMBRO, FISHER and NYGAARD, Circuit Judges

(Filed: February 17, 2012) ___________

OPINION ___________

PER CURIAM

Alwyn Paul Thomas, proceeding pro se, petitions for review of the Board of

Immigration Appeals (“BIA”) final order of removal. The Government has moved to dismiss the petition for lack of jurisdiction. For the reasons that follow, the

Government’s motion is granted, and we will dismiss Thomas’s petition.

I.

Thomas, a native and citizen of Jamaica, became a lawful permanent resident of

the United States in 2004. In January 2010, he pleaded guilty in Pennsylvania state court

to possession with intent to deliver marijuana and conspiracy to possess with intent to

deliver marijuana. The Department of Homeland Security subsequently initiated removal

proceedings against him, charging him with being removable as an aggravated felon, see

(a)(2)(A)(iii), and for having been convicted of a controlled substance

offense. See

(a)(2)(B)(i).

After Thomas’s immigration proceedings were continued three times, the

Immigration Judge (“IJ”) held a merits hearing. At the hearing, which took place in

March 2011, Thomas denied the charges of removability and sought another continuance

in light of the fact that he was in the process of collaterally attacking his conviction in

state court. 1 The IJ declined to further continue the case, noting that “we have no idea

how long [Thomas’s post-conviction challenge] will take.” (A.R. at 33.) The IJ went on

to find that the Government had established by clear and convincing evidence that

Thomas had been convicted of an aggravated felony. As a result, the IJ ordered

Thomas’s removal to Jamaica.

1 Thomas had initiated that collateral attack in October 2010.

2 On appeal, the BIA upheld the IJ’s decision. In doing so, the BIA found that

Thomas “was provided several continuances to prepare his case, and, on appeal, he has

not outlined any arguments he was unable to make before the [IJ].” (Id. at 3.) The BIA

further found that “[t]here is no evidence that [Thomas’s] challenge [to his conviction]

has succeeded and we find no reason to deviate from our precedents holding that a

respondent’s attempts to collaterally attack a conviction do not affect present

removability.” (Id. at 3-4.)

Thomas now petitions for review of the BIA’s decision. The Government seeks to

dismiss the petition for lack of jurisdiction.

II.

Although we generally lack jurisdiction to review final orders of removal issued

against aliens who, like Thomas, are removable for having been convicted of an

aggravated felony, see

(a)(2)(C), we nonetheless have jurisdiction to

review constitutional claims or questions of law raised in such an alien’s petition for

review.

(a)(2)(D). Yet as we have previously noted, “[o]ur jurisdiction

in that respect is narrowly circumscribed in that it is limited to colorable claims or

questions of law.” Pareja v. Att’y Gen. of the U.S.,

(3d Cir. 2010)

(internal quotation marks and citation omitted). “To determine whether a claim is

colorable, we ask whether ‘it is immaterial and made solely for the purpose of obtaining

jurisdiction or is wholly insubstantial and frivolous.’”

(quoting Arbaugh v. Y & H

3 Corp.,

, 513 n.10 (2006)). We now consider whether Thomas has raised a

colorable claim here.

Thomas’s opening brief alleges that his guilty plea in his criminal case is not valid

because (1) his attorney in that case did not advise him of the immigration consequences

of pleading guilty, and (2) no one informed him of his right to contact the Jamaican

consulate. Since this claim is not properly before us – Thomas cannot collaterally attack

his conviction via a petition for review of a BIA decision, see Drakes v. INS,

(3d Cir. 2003) (citing Giammario v. Hurney,

(3d Cir. 1962))

– we cannot conclude that this claim is colorable.

Thomas’s reply brief, in addition to discussing the above-noted claim, contends

that the IJ’s denial of a continuance “prejudiced [Thomas], in as much as the judicial

review entitled to him by the Constitution was denied and . . . the decision based on this

premise was fundamentally unfair.” (Pet’r’s Reply Br. 8.) As we have previously

explained, “[a]n issue is waived unless a party raises it in [his] opening brief.” Laborers’

Int’l Union of N. Am., AFL-CIO v. Foster Wheeler Corp.,

(3d Cir.

l994) (emphasis added). Even if a liberal construction of Thomas’s pro se filings would

allow us to conclude that he has preserved this claim, we would nonetheless hold that it

fails to present a colorable issue. Contrary to Thomas’s assertion, the IJ’s denial of a

continuance did not deny him judicial review. Additionally, he has failed to show how

that ruling rendered his immigration proceedings unfair or otherwise prejudiced him,

particularly given that: (1) the IJ had previously continued the case three times; (2) the

4 timing and outcome of Thomas’s post-conviction proceedings were uncertain at the time

the IJ ruled on Thomas’s motion for a fourth continuance; and (3) Thomas’s post-

conviction petition has since been denied. 2

Because Thomas has failed to raise a colorable claim, we lack jurisdiction over his

petition for review. Accordingly, we grant the Government’s motion and will dismiss the

petition. Thomas’s request that we hold the petition in abeyance pending the resolution

of his appeal in his post-conviction proceedings is denied.

2 Thomas has appealed from the denial of his post-conviction petition; that appeal remains pending before the Pennsylvania Superior Court.

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