NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-3306

___________

EPIFANIO GREGORIO GERMAN,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A043-050-232)

Immigration Judge: Honorable Margaret R. Reichenberg

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

January 23, 2013

Before: SCIRICA, JORDAN and GREENBERG, Circuit Judges

(Opinion filed: January 30, 2013)

___________

OPINION

___________

PER CURIAM

Epifanio Gregorio German petitions for review of his final order of removal. We 

will deny the petition.

I.
2

German is a citizen of the Dominican Republic and a lawful permanent resident of 

the United States. In 2001, he pleaded guilty to New Jersey state charges of possessing 

with the intent to distribute cocaine and heroin in violation of N.J. Stat. Ann. § 2C:35-

5(a)(1). The Government charged him as removable for having been convicted of an 

aggravated felony and a controlled substance offense. See 8 U.S.C. §§ 1227(a)(2)(A)(iii) 

& (a)(2)(B)(i). Through counsel, German conceded both charges and applied for 

cancellation of removal. He also notified the Immigration Judge (“IJ”) that he was 

seeking post-conviction relief from his convictions under Padilla v. Kentucky, 130 S. Ct. 

1473 (2010). The IJ granted him four continuances for that reason and others before 

holding his merits hearing. German requested another continuance pending a hearing in 

his post-conviction matter, but the IJ denied it because she had granted several already 

and the outcome of German’s collateral proceeding remained speculative. The IJ also 

sustained the charges of removability on the basis of both German’s concession and the 

record of conviction. The IJ denied German’s application for cancellation of removal 

because his conviction of an aggravated felony renders him ineligible for that relief. See

German appealed through the same counsel to the Board of Immigration Appeals 

(“BIA”). Despite having conceded the aggravated felony charge before the IJ, German 

argued on appeal that his convictions do not qualify. He also challenged the IJ’s denial 

of an additional continuance and raised a due process claim based on the circumstances 

of his underlying criminal case and on equitable considerations. The BIA rejected 

8 U.S.C. § 1229b(a)(3).
3

German’s challenge to the aggravated felony charge on the grounds that his concession of 

that charge before the IJ is controlling in the absence of circumstances not presented here 

and that it does not consider arguments raised for the first time on appeal. The BIA also 

concluded that the IJ had not abused her discretion in denying an additional continuance

or otherwise deprived German of due process. German petitions for review pro se.

1

II.

German raises three arguments on review, but each lacks merit. First, he argues 

that he was deprived of due process because, although he did not plead guilty to the crime 

of conspiracy under N.J. Stat. Ann. § 2C:5-2, a conspiracy charge was included in his 

notice to appear and improperly formed the basis for his removal. This argument is 

frivolous because German was neither charged with removability nor ordered removed 

on the basis of any conspiracy conviction. (A.R. 180.)

Second, German argues that his crimes of conviction do not qualify as aggravated 

felonies for a number of reasons. (He would remain removable for having been 

convicted of a controlled substance offense, but it is his conviction of an aggravated 

felony that renders him ineligible for cancellation of removal.) As German did before the 

BIA, however, he fails to acknowledge that he expressly conceded the aggravated felony 

charge before the IJ. (A.R. 102.) He also fails to acknowledge that the BIA deemed that 

 1 We have jurisdiction under 8 U.S.C. § 1252(a)(1). Our jurisdiction is limited to 

constitutional claims and questions of law because German has been convicted of a 

controlled substance offense (which he does not dispute) and an aggravated felony as 

discussed below. See 8 U.S.C. § 1252(a)(2)(C), (D). We review such claims and 
4

concession controlling, and he thus has not challenged the actual basis for the BIA’s 

decision. Even if we were to overlook these obstacles, however, German’s convictions of 

possession with the intent to distribute cocaine and heroin clearly qualify as “illicit 

trafficking” aggravated felonies under the hypothetical federal felony approach. Cf.

Wilson v. Ashcroft

Finally, German argues that the IJ abused her discretion in denying his fourth 

request for a continuance. As the Government argues, we lack jurisdiction to review that 

discretionary decision because it does not present a constitutional claim or question of 

law. 

, 350 F.3d 377, 381 (3d Cir. 2003) (holding that 21 U.S.C. § 841(a)(1) 

“proscribes the identical conduct” of possession with intent to distribute under N.J. Stat. 

Ann. § 2C:35-5 but applying an exception relating to marijuana that does not apply here).

See Ogunfuye v. Holder, 610 F.3d 303, 307 (5th Cir. 2010). German does not argue 

that the denial of another continuance deprived him of due process, and it did not because 

his convictions remain final for immigration purposes despite the pendency of his 

collateral attack, which he does not claim has been successful. See Paredes v. Att’y Gen.

For these reasons, we will deny his petition for review.

, 

528 F.3d 196, 198-90 (3d Cir. 2008). 

 

questions de novo. See Roye v. Att’y Gen., 693 F.3d 333, 339 (3d Cir. 2012).