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w . v i l l a no v a . e du/thir dc ir c uit_2014/27NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 13

- 3082

___________ MARIO JOSE LLIN SANTANA, Petitioner

v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent

________________________ ____________ On Petition for Review of an Order of the Board of Immigration Appeals

(Agency No. A044

- 446

- 371 ) Immigration Judge: Honorable M iriam K. Mills

____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a) January 2, 20 1 4 Before: JORDAN, GREENBERG and VAN ANTWERPEN , Circuit Judges (Opinion filed : January 8, 2014 )

___________

OPINION

___________ PER CURIAM Mario Llin Santana, a citizen of the Dominican R epublic, became a lawful permanent resident of the United States in 1994. In 1997, he pled guilty to and was
convicted of a ttempted c riminal s ale of a c ontrolled substance in the t hird d egree, in
violation of New York Penal Law (“NYPL”) § 220.39. In 2010, Llin Santana returned2 from a trip to the Dominican R epu blic and was questioned by a n immigration official. He admitted to his prior conviction, though he claimed that he only pled guilty because his attorney told him to. H e was subsequently served with a Notice to Appear charging
him as inadmissible under bo th 8 U.S.C. § 1182(a)(2)(A)(i)(II), as an alien who has been
convicted of “a violation of .

. . any law .

. . of a State .

. . relating to a controlled substance,” and § 1182(a)(2)(C), as an alien who the Attorney General knows or has
reason to believe “ha s been an illicit trafficker in any controlled substance.” Those charges were sustained, and he was ordered removed.
Llin Santana’s appeal to the Board of Immigration Appeals (“BIA”) was
dismissed on June 5, 2013 , and he timely petition ed for review. 1 B ecause Llin Santana
was found removable due to a conviction of a controlled substance offense, see 8 U.S.C. § 1182(a)(2)(A)(i)(II), we lack jurisdiction to review his final order of removal, 8 U.S.C. § 1252(a)(2)(C), except to the extent that he raises c onstitutional claims or questions of
law. 8 U.S.C. § 1252(a)(2)(D). As a threshold matter, such claims must be colorable, i.e., non

- frivolous. See Pareja v. Att’y Gen.
Llin Santana presently claims that the Government failed to demonstrate that his conviction constituted a felony punishable under the Controlled Substances Act (“CSA”)

. However, no such demonstration is required; any conviction for a crime involving a , 615 F.3d 180, 186 (3d Cir. 2010).

1 The Government incorrectly argues that Llin Santana’s petition for review was untimely filed on July 8, 2013. The petition for review was received by the Court on July 3, 2013, 28 days after the Board’s dismissal of his appeal. See 8 U.S.C. § 1252 (b)(1) (providing for 30

- day deadline in which to file petition for review)

.3 controlled substance is grounds for inadmissibility under § 1182(a)(2)(A)(i)(II)

. See
Mizrahi v. Gonzales , 492 F.3d 156, 158

– 59 (2d Cir. 2007) ( explaining that “the statutory language indicates Co ngress’s “intent to sweep broad ly, applying to a violation of ‘ any law or regulation,’ wheth er state, federal, or foreign, ‘ relating to a controlled substance’”) ( quoting § 1182(a)(2)(A)(i)(II) ) ; see also Borrome v. Att’y Gen. , 687 F.3d 150, 1 60 (3d Cir. 2012) (noting that the phrase “relating to” is to be read expansively)

. Moreover, Llin
Santana does not challen ge the BIA’s holding that all of the substances criminalized by NYPL § 220.39 are included in the CSA , and they are

. 2 Thus, a ny conviction under NYPL § 220.39 constitutes a violation of a law “ relating to a controlled substance ” as defined by the CSA and justif ies a finding of inadmissibility under § 1182(a)(2)(A)(i)(II) irrespective of whether the record identifies the substance involved

. Cf. Rojas v. Att’y
Gen.

2 The CSA provides a list of “controlled substances” at 21 U.S.C. § 812 , which is
su pplemented by 21 C.F.R. §§ 1308.11

– .15. Borrome , 687 F.3d at 158. The Federal Analog Act furt her provides that the analog of any of the listed substances shall themselves be treated as a controlled substance under schedule I. 21 U.S.C. § 813

. NYPL § 220.39 criminalizes the sale of numerous classes of drugs which are enumerated in NY Public Healt h Law § 3306 . All of the substances that could be involved in a conviction under NYPL § 220.39 are either included in the CSA or are analogues of listed substances. Compare NYPL § 220.39 and NY Public Health Law § 3306 with 21 U.S.C. §§ 802(6); 812(c); 8 13

. , 728 F.3d 203, 204, 206 (3d Cir. 2013) (en banc) (holding that the Government was required to prove the identity of the controlled substance involved in a Pennsylvania offense where “Pennsylvania’s controlled substances schedules list drugs that are not in the federal schedules”). To the extent L lin Santana argues that the Government has not4 met his burden to demonstrate his inadmissibility because the record simply refers to a “dangerous drug , ” his claim is frivolous. The petition for review presents no colorable claims , 3 and w e will dismiss i t for lack of jurisdiction

. Pareja , 615 F.3d at 18 6

.

3 Because Llin Santana is inarguably inadmissible under § 1182(a)(2)(A)(i)(II) , any challenge to the BIA’s determination that he is inadmissible under § 1182(a)(2)(C) is frivolous. Llin Santana’s contention that he is actually innocent of the crime at issue and pled guilty only on the advice of counsel also is not colorable; a conviction remains a conviction for immigration purposes unless and until it is overturned, which Llin Santana does not allege has occurred here. See Paredes v. Att ’ y Gen. , 528 F.3d 196, 198

– 99 (3d Cir. 2008). Accordingly, these claims are beyond our jurisdiction . 8 U.S.C. § 1252(a)(2)(D) ; Pareja , 615 F.3d at 186.