BLD

- 018 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 11

- 1187

___________ RAUL WILFREDO MAYORGA

- BARRENO a/k/a Rafael Nunez

- Mayorga

v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent Raul Mayorga,

Petitioner

____________________________________ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A0 96

- 539

- 978 ) Immigration Judge: Honorable Susan G. Roy

___________________________ _________ Submitted on Respondent’s Motion for Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

October 20, 2011 Before: SCIRICA, SMITH and CHAGARES , Circuit Judges

(F iled : November 9, 2011 )

_________ OPINION OF THE COURT

_________ PER CURIAM

. Raul Wilfredo Mayorga

- Barreno has filed a petition for review of an order of the Board of Immigration Appeals (“BIA” ) denying his motion to re consider its earlier2

d ecision summarily affirming an Immigration Judge’s (“IJ”) decision t o pretermit his application for cancellation of removal

. After Mayorga

- Barreno filed h is brief with this Court, the Government moved for summary action. See 3d Cir. LAR 27.4 ; 3d Cir. I.O.P. 10.6. Because Mayorga

- Barreno = s brief contains no argument that the BIA erred in denying petitioner’s reconsideration motion , and instead takes issue solely with the conclusions of the IJ, he has waiv ed review of the only issues viable in this proceeding. Accordingly, we will grant the Government ’ s motion and summari ly deny Mayorga

Barreno = s petition for review. Because the parties are familiar with the facts , we present t hem only in brief
summary here

. Mayorga

- Barreno is a native and citizen of Ecuador who was admitted to the United States on October 10, 1999, as a nonimmigrant visitor

. Mayorga

- Barreno stayed beyond t he permissible period and was served with a Notice to Appear on April 12, 2007, charging him as an overstay. Petitioner, through counsel, conceded removability , and applied for relief in the form of ca ncellation of removal and, alternatively, voluntary departure. However, Mayorga

- Barreno had a criminal record and had been found guilty of , inter alia , theft in violation of Mont. C ode Ann. § 45

- 6

- 301 (1)

. Petitioner’s counsel agreed with the IJ that Mayo rga - Barreno’s theft conviction is a crime involving moral turpitude, thus r endering him ineligible for cancellation of removal as a
matter of law under INA § 240A(b)(1)(C ) , 8 U.S.C. § 1229b(b)(1)(C). Accordingly, the IJ pretermitted petitioner’s applicati on for cancellation of removal in an Oral Decision and Order issued on April 21, 2009.3

Additionally, the IJ found that the record evidence and counsel’s concession supported the conclusion that Mayorga

- Barreno failed to establish the continuous physical pr esence requirement that would demonstrate an eligibility for cancellation of removal. The IJ thus pretermitted petitioner’s application for cancellation of removal on this alternate basis as well. Finally, given petitioner’s numerous convictions and the fact that he provided several aliases to various law enforcement officials, the IJ exercised her discretion to deny Mayorga

- Barreno’s application for voluntary departure , and p etitioner was ordered removed to Ecuador. The BIA affirmed the IJ’s decision, w ithout opinion, in an order dated April 12, 2010. Mayorga

- Barreno returned to the BIA with a timely motion seeking reconsideration of its earlier decision. Petitioner provided no substantive argument, but simply asserted that reconsideration was warranted on the basis of the decisions by the United States Supreme Court in Padilla v. Kentucky , 130 S. Ct. 1473 (2010), and the New Jersey Supreme Court in State v. Nunez

- Valdez , 975 A.2d 418 (N.J. 2009), dealing with claims of ineffective assistance for counsel ’s failure to advise clients of the immigration consequences of their guilty pleas. The BIA denied petitioner’s reconsideration motion in an order issued on December 28, 2010. The BIA noted that Mayorga

- Barreno has multiple convictions in different juris dictions and failed to provide any evidence that his state convictions have been vacated on account of counsel’s ineffective representation. The BIA concluded that reconsideration was not warranted given that it had nothing before it other than petitioner ’s “generic collateral a ttacks on criminal convictions, which4

are supported by no more than a bare assertion that the convictions were improper” under
Padilla and Nunez

- Valdez . BIA’s Order of 12/28/10 at 1. On January 24, 2011, Mayorga

- Barreno filed this petition for review.
In h is opening brief , Mayorga

- Barreno challenges the IJ’s decision to pretermit his application for cancellation of removal . Specifically, Mayorga

- Barreno argues that the IJ erred in concluding that his misdemeanor theft conviction p recluded him from applying for cancellation of removal, and that the IJ should have allowed him to present evidence regarding the hardship his son would face if he is removed. Unfortunately for petitioner,
t his Court does not have jurisdiction to review t he BIA = s April 12, 20 10 order summarily affirming the IJ’s decision because Mayorga

- Barreno did not file h is petition for review within thirty days of that order. 1 See 8 U.S.C. ' 1252(b)(1) (providing that a petition for review must be filed not later tha n thirty days after the date of the final order of removal). The petition for review was, however, timely with respect to the BIA = s December 28 , 20 10 order declining to reconsider its previous dismissal of the appeal. Therefore, this Court has jurisdicti on to review the BIA = s December 28, 2010 order. That said, Mayorga

- Barreno = s counseled brief does not contain any argument whatsoever pertaining to the BIA = s December 28, 2010 order. Rather, as noted above, Mayorga

- Barreno = s brief focuses solely on the IJ = s decision underlying the BIA’s earlier
order of April 12, 2010

. We thus deem any challenge to the December 28, 2010 order to

1 Mayorga

- Barreno = s motion for reconsideration did not toll the time f or filing a petition for review of the BIA = s April 12, 2010 decision. Stone v. Immigration & Naturalization Serv. , 514 U.S. 386, 405 (1995).5

be waived. See Dwumaah v. Att’y Gen. , 609 F.3d 586, 589 n.3 (3d Cir. 2010) ( citing Lie v. Ashcroft , 396 F.3d 530, 532 n.1 (3d C ir. 2005)) ; see also Ghana v. Holland , 226 F.3d 175, 180 (3d Cir. 2000) (holding that appellate arguments may not be raised for the first time in a reply brief).
Because Mayorga

- Barreno has abandoned the only issues available to h im in this proceeding , hi s petition for review presents us with “ no substantial question. ” 3d Cir.
I.O.P. 10.6. Accordingly, we will grant the Government = s motion and summari ly deny the petition for review.