2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-5-2011

Orlando Lezama v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-3401

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ELD-044 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-3401

___________

ORLANDO NEIL LEZAMA,

AKA Rubin Colon, AKA Neil Lezama,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A086-963-640)

Immigration Judge: Honorable Margaret R. Reichenberg

____________________________________

Submitted for Possible Summary Action Pursuant to 

Third Circuit L.A.R. 27.4 and I.O.P. 10.6

December 15, 2010

Before: BARRY, CHAGARES and GARTH, Circuit Judges

(Opinion filed January 5, 2011)

___________

OPINION

___________

PER CURIAM

Petitioner Orlando Lezama has filed a petition for review of the Board of 

Immigration Appeals’ (“BIA”) decision upholding the Immigration Judge’s (“IJ”) order 

that denied his request for a continuance to pursue post-conviction relief (“PCR”) and 
2

ordered his removal to Trinidad and Tobago. The Government has filed a motion 

requesting summary denial of the petition for review, which Lezama opposes.

I

Lezama entered the United States in 1987, at age nine, with authorization to 

remain for a five-week period. He never left. In 2003, he pleaded guilty in New Jersey 

Superior Court, Union County, to possession with intent to distribute ecstasy and 

possession with intent to distribute ecstasy within 500 feet of a public park. At the plea 

colloquy, Lezama admitted that he and his attorney had discussed “the immigration or 

possible immigration consequences of [his] plea,” including “a discussion about the 

possibilities of deportation[.]”

In July 2009, Lezama received a notice to appear indicating that he was removable 

for overstaying his visa and for incurring a drug conviction. In September 2009, Lezama 

appeared before the IJ, conceded removability, and applied for cancellation of removal. 

The IJ granted a continuance so that Lezama could pursue post-conviction relief in state 

court. Lezama then filed a PCR petition, arguing that his trial attorney was ineffective 

under State v. Nunez-Valdez, 975 A.2d 418 (N.J. 2009), in which the New Jersey 

Supreme Court held that counsel was ineffective for materially misinforming an alien that 

no immigration consequences would result from his guilty plea when, in fact, deportation 

was a mandatory consequence. Lezama claimed that, like Nunez-Valdez’s attorney, his 

attorney incorrectly stated that he was unlikely to face deportation, when it was actually 

mandatory.
3

In January 2010, the IJ granted Lezama a second continuance because his PCR 

proceedings had not yet been completed. In March 2010, Lezama’s PCR proceedings 

remained incomplete and he requested a third continuance. The IJ declined to grant a 

continuance, pretermitted his application for cancellation of removal, and ordered him

removed. Lezama appealed to the BIA, arguing that the IJ erred in denying a 

continuance. The BIA dismissed the appeal and Lezama filed this petition for review. 

The Government has filed a motion to summarily deny the petition for review, and 

Lezama has submitted a response in opposition.

II

We have jurisdiction to review a final order of removal pursuant to 8 U.S.C. 

§ 1252(a). Because the BIA issued its own opinion, we review its decision rather than 

the IJ’s. See Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir. 2005). However, we look to 

the decision of the IJ to the extent that the BIA deferred to or adopted the IJ’s reasoning. 

See Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006). If Lezama presents no 

substantial question, we may summarily deny the petition for review. See 3d Cir. L.A.R. 

27.4; 3d Cir. I.O.P. 10.6. 

We have jurisdiction to review an IJ’s decision to deny a continuance, and do so 

for an abuse of discretion. See Khan v. Att’y Gen., 448 F.3d 226, 233 (3d Cir. 2006). 

That question is resolved on a case-by-case basis, and the IJ’s decision should be 

reversed only if it was arbitrary, irrational, or contrary to law. See id. In denying a third 

continuance, the IJ reasoned that the removal proceedings had already been continued for 
4

six months without resolution of Lezama’s PCR petition. The BIA agreed, noting that 

Lezama’s ability to prevail in his PCR case was speculative and that his request was for 

an indefinite period.1

In response to the Government’s motion, Lezama argues that the continuance was 

not for a truly indefinite period: he had a PCR hearing scheduled, and the PCR court’s 

decision was necessarily forthcoming. He also suggests that his likelihood of success on 

the PCR petition was more than speculative, as he made out a strong prima facie showing 

that his trial counsel was ineffective. Nevertheless, Lezama has identified no authority 

indicating that the IJ’s unwillingness to further delay the removal proceedings because of 

his difficulty in obtaining more expedited review of his PCR petition was “arbitrary, 

irrational, or contrary to law.” Nor does the fact that he received a hearing on his PCR 

petition in July affect the propriety of the IJ’s earlier decision.

Accordingly, we will grant the Government’s motion and deny the petition for 

review. We also deny Lezama’s stay motion, which we earlier granted pending review of 

the administrative record.

 

1

 The pendency of a post-conviction motion does not negate the finality of a 

conviction for immigration purposes. See Paredes v. Att’y Gen., 528 F.3d 196, 198-

99 (3d Cir. 2008). 

Lezama's PCR petition filed in the New Jersey Superior Court was denied on 

December 1, 2010. The opinion of the Superior Court found as a fact that Lezama's 

testimony as to receiving deportation advice was not credible, and that his attorney's 

testimony was credible. It therefore held that there was no ineffective assistance of 

counsel.

This being so, we grant the Government's motion for summary action and deny 

Lezama's petition for review, which was also held in abeyance, all as noted in text 

above.