1 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No s . 12

- 1616 & 12

- 1913

___________ DOMINGO IGNACIO RODRIGUEZ

- RODRIGUEZ, a/k/A Domingo Ignacio Ro d riguez, a/k/a Albert Meindl, a/k/a Paco Rodriguez

v. ATTOR NEY GENERAL UNITED STATES OF AMERICA, Re s pondent Domingo Ignacio Rodriguez

- Rodriguez, Petitioner

____________________________________ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A038

- 502

- 243 ) Immigration Judge: H onorable Walter A. Durling

____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a)

January 2, 2013 Before: FUENTES, VANASKIE and VAN ANTWERPEN , Circuit Judges

(Opinion filed : January 4, 2013 )

_________ OPINION

_________ PER CURIAM In 2008, petitioner Rodriguez, who is a citizen of the Dominican Republic, was2

convicted of two alien

- smuggling offenses. 1 See Administrative Record (A.R.) 237

. He was thereafter charged with removability as an aggravated felon. A.R. 206; see also 8
U.S .C. §§ 1101(a)(43)(N), (U), 1227(a)(2)(A)(iii). Appearing without counsel before an Immigration Judge (IJ), Rodriguez requested that removal proceedings be “suspend[ed] . . . until there is a decision forthcoming from the Supreme Court” on his criminal ca se . T he IJ denied the request, sustained the charges of removal, and ordered Rodriguez deported to the Dominican Republic. A.R. 111

– 12, 125. The Board of Immigration Appeals (BIA) dismissed Rodriguez’s appeal. This timely petition for review followed.
The Government has filed a motion to dismiss for lack of jurisdiction

. We grant the Government’s motion and will dismiss the petition. Under the Immigration and Nationality Act, we lack jurisdiction to review “ any final order of removal ” rendered agains t criminal aliens, except to the extent that the alien raises a colorable legal or constitutional claim. 8 U.S.C. § 1252(a)(2) (C)

– (D); Jarbough v. Att’y
Gen. , 483 F.3d 184, 190 (3d Cir. 2007) . Here, Rodriguez appears to challenge the IJ’s
decision to den y his request for a continuance and the agency’s overall decision to order him removed while his 28 U.S.C. § 2255 motion was pending. 2 We have not yet, in a precedential decision, squarely addressed whether we retain jurisdiction when a criminal alien, su bject to the jurisdiction

- stripping provisions cited above, challenges the denial of

1 A conviction on an additional hostage

- taking charge was vacated. See United States v. Rodriguez , 423 F. App’x 28 , 28

– 29 (2d Cir.) (summary order), cert. denied , 132 S. Ct. 531 (2011)

.
2 We take judicial notice that the § 2255 motion is still pending as of the time of writing. See E.D.N.Y. Civ. No. 2:11

- cv - 05470

.3

a continuance, although at least one of our sister Circuits has answered this question in the negative. See Ogunfuye v. Holder , 610 F.3d 303, 307 (5th Cir. 2010)

. There may be situations in which a denial of a continuance might be so unjustified or erroneous as a matter of law to elevate it to a reviewable level. See, e.g. , Hoxha v. Holder , 559 F.3d 157, 163 n.5 (3d Cir. 2009)

. This petition, however, is not of that sor t. T he record reflects that Rodriguez’s certiorari petition was denied on the exact same day that the IJ
ordered him removed

. Any d ue p rocess claim stemming from the denial of a continuance pending resolution of certiorari to the United States Supreme Co urt therefore became “wholly insubstantial and frivolous” long before reaching the BIA ; since it is not “colorable,” it does not grant us jurisdiction over this petition. See Pareja v. Att’y Gen. , 615 F.3d 180, 186 (3d Cir. 2010)

. Nor does the pendency o f a § 2255 motion affect the finality of a conviction

. Paredes v. Att’y Gen. , 528 F.3d 196, 19 8

– 99 (3d Cir. 2008)

. In sum, we detect no colorable constitutional or legal claim in this petition for review, and we are otherwise unable to reach the merits of Rodriguez’s claims due to his
criminal

- alien status. Accordingly, we are compelled to dismiss the petition for review.