2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-17-2012

Alwyn Thomas v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-3276

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NOT PRECEDENTIAL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 
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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

8 U.S.C. § 1227(a)(2)(A)(iii), and for having been convicted of a controlled substance 

offense. See 8 U.S.C. § 1227(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

 1 Thomas had initiated that collateral attack in October 2010.

 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.
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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 8 U.S.C. § 1252(a)(2)(C), we nonetheless have jurisdiction to 

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

review. 8 U.S.C. § 1252(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., 615 F.3d 180, 186 (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.’” Id. (quoting Arbaugh v. Y & H 
4

Corp., 546 U.S. 500, 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, 330 F.3d 

600, 603 (3d Cir. 2003) (citing Giammario v. Hurney, 311 F.2d 285, 287 (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., 26 F.3d 375, 398 (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 
5

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 postconviction 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.