NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 10-2538
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ORLANDO MEDINA LOPEZ
a/k/a ORLANDO MEDINA
ORLANDO MEDINA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
__________________________________
On a Petition For Review of an Order
of the Board of Immigration Appeals
(Agency No. A044-044-570)
Immigration Judge: Walter A. Durling
__________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 22, 2011
Before: SCIRICA, SMITH and VANASKIE, Circuit Judges
(Opinion filed April 29, 2011 )
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OPINION
____________
PER CURIAM
Orlando Medina Lopez (“Medina”) petitions for review of the Board of
Immigration Appeals’ final order of removal. For the reasons that follow, we will deny
the petition for review.
Medina, a native and citizen of the Dominican Republic, was admitted to the
United States on May 15, 1993 as a lawful permanent resident. On January 3, 2001, he
was convicted, pursuant to a plea of guilty, of attempted criminal sale of cocaine in the
third degree, in violation of N.Y. Penal Law § 220.39. He was sentenced to five years
probation. On November 2, 2009, the Department of Homeland Security (“DHS”) issued
a Notice to Appear, charging that Medina was subject to removal pursuant to
Immigration & Nationality Act (“INA”) § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i),
for having been convicted of a controlled substance offense, and INA § 237(a)(2)(A)(iii),
8 U.S.C. § 1227(a)(2)(A)(iii), for having been convicted of an aggravated felony.
After Medina obtained counsel, he appeared before the Immigration Judge, on
January 26, 2010, and denied the charges. At a hearing on February 17, 2010, Medina’s
counsel proffered an argument that the drug conviction did not constitute an aggravated
felony. Counsel stated that he had been in touch with New York court staff, but he had
been unable to get “a transcript, any sort of record, anything other than the Certificate of
Disposition of Indictment…” A.R. 113. The government then submitted a certified
record of conviction and argued that a conviction for the sale of a controlled substance
other than marijuana clearly is an aggravated felony. The IJ agreed with the government
and sustained both charges of removability. A.R. 119.
2
During the February 17, 2010 hearing, counsel argued that Medina’s conviction
was not a drug trafficking offense because the conviction did not involve a trafficking
element, see Steele v. Blackman, 236 F.3d 130, 135 (3d Cir. 2001), A.R. 116. Counsel
asked for additional time to brief the issue, but the IJ declined to grant him a continuance.
The IJ noted that, as to the validity of the conviction itself, Medina had yet to file a
motion for post-conviction relief in state court. A.R. 119-20. As to counsel’s request for
further time to brief the aggravated felony issue, the IJ observed that Steele had never
been extended to a sale of cocaine. A.R. 118-19, 121.1 The IJ issued an oral decision on
the same day as the hearing, finding Medina removable as charged, denying his motion
for a continuance, and ordering him removed to the Dominican Republic.
Medina appealed pro se to the Board of Immigration Appeals. In his Notice of
Appeal, he contended that the IJ erred in finding him removable because his conviction
was not final in that it was under review in state court. A.R. 84. He asserted that, as of
February, 2010, a hearing had been scheduled in state court, and he documented this
assertion, see id. at 30. Medina also contended on appeal to the Board that he informed
his immigration counsel of the existence of proceedings in state court, but counsel failed
to tell the IJ that state post-conviction proceedings were pending. See id. Medina filed a
motion with the Board to stay proceedings, arguing that his conviction was invalid
because his guilty plea was involuntary, see id. at 73, and he filed a motion for a
transcript of the prior immigration proceedings, stating that the transcripts were
1
We note that the petitioner in Steele was convicted of the criminal sale of marijuana, in
violation of New York Penal Law § 221.40. Steele, 236 F. 3d at 131.
3
“necessary to ensure appropriate review by the Board … and any later Federal Court
review,” see id. at 70. Medina also filed a motion to hold his appeal in abeyance pending
the receipt of the transcripts from his prior immigration hearings. See id. at 52-53.
Medina then submitted a pro se brief, addressing the arguments raised in his Notice of
Appeal. He attached to his brief an item documenting that the Notes of Testimony from
his state court hearing on November 15, 2000 could not be located.
On May 20, 2010, the Board dismissed Medina’s appeal. In its decision, the
Board adopted and affirmed the IJ’s decision and specifically noted that it agreed with the
IJ’s finding that Medina’s drug conviction “qualifies as an aggravated felony.” A.R. 2.
Additionally, the Board rejected Medina’s argument concerning the finality of his
conviction. The Board observed that the evidence Medina submitted “does not indicate
that [his] 2001 conviction has been overturned, vacated, or expunged; rather, the
evidence merely indicates that [his] post judgment motion has been scheduled before a
judge.” Id. at 3. Citing Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the Board saw no
evidence to support an argument that Medina’s guilty plea was involuntary because
criminal trial counsel failed to warn him about the deportation consequences of his
conviction, and, in any event, his argument was “in the nature of collateral attacks on his
conviction,” which neither the Board nor the IJ could entertain. A.R. 3. As to the
contention that immigration counsel had rendered ineffective assistance in arguing the
finality issue before the IJ, the Board determined that the claim could not proceed
because Medina had not complied with the procedural requirements of Matter of Lozada,
19 I. & N. Dec. 637 (BIA 1988). In a footnote, the Board denied Medina’s motion to
4
hold his appeal in abeyance, noting that the Administrative Record contained all of the
transcripts, and Medina had not alleged that he was unable to prepare his brief due to
missing transcripts.
Medina has timely petitioned for review. In his hand-written brief, which he has
supplemented with a typed document in support of his petition for review, Medina
contends that (1) he did not receive the transcript from his immigration hearing, see
Petitioner’s Informal Brief, at 2; (2) his conviction is not final for immigration purposes,
see Petitioner’s Informal Brief, at 3; (3) a remand to the Board is required on the basis of
his claim of ineffective assistance of criminal trial counsel, see Petitioner’s Informal
Brief, at 4; and (4) the BIA erred in not holding his case in abeyance to allow him to
obtain the transcript of his hearing before the IJ, see Petitioner’s Informal Brief, at 5.
We will deny the petition for review. As a threshold matter, we note that our
jurisdiction over Medina’s petition is subject to INA § 242(a)(2)(C), 8 U.S.C. §
1252(a)(2)(C), which bars us from reviewing a removal order against an alien, like
Medina, who is removable pursuant to INA § 237(a)(2)(B)(i), 8 U.S.C. §
1227(a)(2)(B)(i), for having been convicted of a controlled substance offense, and INA §
237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), for having been convicted of an
aggravated felony. We retain jurisdiction to review constitutional claims or questions of
law, INA § 242(a)(2)(d), 8 U.S.C. § 1252(a)(2)(D).
5
Medina does not challenge that he is removable for having been convicted of an
aggravated felony2 or a controlled substance offense. Instead, he contends that his New
York conviction for the sale of cocaine is not final for immigration purposes and thus the
order of removal is void. In Pinho v. Gonzales, 432 F.3d 193, 210 (3d Cir. 2005), we
held that, where the alien’s prior conviction had been vacated on the basis of a defect in
the criminal proceedings, there was no longer a conviction for immigration purposes.
But Pinho does not apply here because Medina has not shown that his conviction has
been vacated. Prior to briefing, on June 1, 2010, Medina filed a motion to stay removal
(which we ultimately denied), in which he stated that he was challenging the validity of
his state court criminal conviction in the New York First Appellate Division Department
under Padilla, 130 S. Ct. 1473 (counsel renders constitutionally ineffective assistance
when he fails to advise defendant that his guilty plea made him subject to automatic
deportation). Medina attached to his stay motion the written Decision of the Honorable
Daniel Conviser of the N.Y. State Supreme Court, dated 4/19/2010, denying his state
post-conviction petition.
2
Even if we assume that N.Y. Penal Law § 220.39 does not contain a trafficking element,
as Medina’s immigration counsel argued before the IJ, it could still be an aggravated
felony under the “hypothetical federal felony” route. See Gerbier v. Holmes, 280 F.3d
297, 315 (3d Cir. 2002). A state drug conviction qualifies as a “hypothetical federal
felony” if it punishable as a felony under the Controlled Substances Act. See id. The
pertinent federal analog for N.Y. Penal Law 220.39, which provides that a “person is
guilty of criminal sale … when he knowingly and unlawfully sells” a controlled
substance, for example cocaine, appears to be 21 U.S.C. § 841(a)(1), which prohibits the
knowing or intentional “possess[ion] with intent to ... distribute” a controlled substance,
for example, cocaine. Possession with intent to distribute cocaine carries a maximum
penalty in excess of one year, see id. at § 841(b), and thus is punishable as a felony under
the Controlled Substances Act.
6
Applying Padilla and Strickland v. Washington, 466 U.S. 668, 691 (1984), Judge
Conviser concluded that Medina could not show prejudice with respect to trial counsel’s
alleged substandard advice because Medina admitted in an affidavit in support of his
post-conviction petition that he personally was fully aware of the immigration
consequences of a guilty plea. See New York v. Medina, No. 07044-99, at 4 (N.Y. Sup.
Ct. April 19, 2010 (Decision and Order). In addressing a claim that trial counsel rendered
ineffective assistance by failing to appeal the conviction, Judge Conviser noted with
respect to the prejudice question that Medina received a benefit from pleading guilty in
that he was facing two Class B felony charges and a mandatory state prison sentence.
His guilty plea to one Class C felony allowed him to stay out of jail. See id. at 5-6.
Judge Conviser was aware that there was no guilty plea hearing transcript because the
Notes of Testimony were missing, but he nonetheless did not believe that the transcript
was necessary to decide the ineffectiveness claims. Medina’s request for an evidentiary
hearing was denied. See id. at 6.
Consequently, there is no support for Medina’s assertion that his state court
conviction has been vacated. We note that he does not contend in his brief that his appeal
in state court of the order denying his post-conviction petition was successful. In Paredes
v. Att’y Gen. of U.S., 528 F.3d 196 (3d Cir. 2008), we considered the issue of whether
the pendency of post-conviction motions or other forms of collateral attack negates the
finality of a conviction for immigration removal purposes. We concluded that “such
pendency does not vitiate finality, unless and until the convictions are overturned as a
7
result of the collateral motions.” Id. at 198-99. Paredes applies here. Medina’s state
court conviction has not been overturned and it thus provides a basis for his removal.
It necessarily follows that, although the IJ thought that no state post-conviction
petition had been filed, Medina was not prejudiced by immigration counsel’s failure to
tell the IJ that a petition was pending, because mere pendency does not vitiate finality.
See Zheng v. Gonzales, 422 F.3d 98, 107 (3d Cir. 2005) (in addition to its procedural
requirements, Lozada requires a showing that counsel’s deficient performance actually
prejudiced the alien in some respect). Moreover, a remand to the Board is not required to
address Medina’s claim of ineffective assistance of criminal trial counsel, because the
Board has no authority to invalidate a state court judgment of conviction. See Matter of
Madrigal-Calvo, 21 I. & N. Dec. 323, 327 (BIA 1996). Nor may we entertain Medina’s
collateral challenge to the judgment of conviction. See Drakes v. Immigration &
Naturalization Serv., 330 F.3d 600 (3d Cir. 2003).3
Last, the Board did not abuse its discretion in denying a stay of proceedings on the
basis of missing transcripts. The Administrative Record contains transcripts from all of
the master calendar hearings and the hearing on February 17, 2010, all of which we have
read and considered. The transcript from the February 17, 2010 hearing is fairly short
(14 pages) and concerns primarily immigration counsel’s and government counsel’s
arguments before the IJ. Medina does not appear to us to have been hindered in the
preparation of his brief by the absence of that transcript.
3
Thus, the fact that a transcript from Medina’s state plea hearing may be missing or
unavailable is neither a basis for a remand to the Board, nor is it sufficient to warrant a
continuance of immigration proceedings.
8
For the foregoing reasons, we will deny the petition for review.
9