FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT December 19, 2014
Elisabeth A. Shumaker
Clerk of Court
JUAN CASTILLO-HERNANDEZ,
Petitioner,
v. No. 14-9504
(Petition for Review)
ERIC H. HOLDER, JR., United States
Attorney General
Respondent.
ORDER AND JUDGMENT*
Before HOLMES, MATHESON, and McHUGH, Circuit Judges.
Mr. Castillo petitions for review of a Board of Immigration Appeals (“BIA”)
order. We lack jurisdiction under Article III of the Constitution or 8 U.S.C.
§ 1252(a)(2)(C).
I. BACKGROUND
Mr. Castillo is a Mexican citizen who entered the United States without inspection
no later than 1997. In July 2012, he married United States citizen Ms. Marisol Torres.
Their four children are United States citizens.
* This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Mr. Castillo’s criminal history includes convictions for the following Colorado
state crimes:
• Theft of more than $100 but less than $500 in violation of Colo. Rev. Stat. § 18-4-
401(1)(d), a class 2 misdemeanor (sentenced on April 28, 1998);
• First Degree Criminal Trespass in violation of Colo. Rev. Stat. § 18-4-502, a class
5 felony (sentenced on February 18, 2000);
• Third Degree Sexual Assault in violation of Colo. Rev. Stat. § 18-3-404, a class 1
misdemeanor (sentenced on August 21, 2002).
In 2013, Mr. Castillo was convicted of driving under the influence, which prompted
immigration authorities to arrest and detain him due to his criminal history.
The Department of Homeland Security served a Notice to Appear (“NTA”) on Mr.
Castillo. It alleged he was removable under the Immigration and Nationality Act
(“INA”) for (1) being present in the United States without inspection or permission in
violation of 8 U.S.C. § 1182(a)(6)(A)(i), and (2) being a noncitizen who committed a
crime involving moral turpitude (“CIMT”) in violation of § 1182(a)(2)(A)(i)(I). The
NTA listed Mr. Castillo’s convictions for theft, criminal trespass, and sexual assault as
CIMTs.
On July 9, 2013, Mr. Castillo appeared with counsel at his immigration hearing.
He admitted all allegations in the NTA and conceded both removability charges. His
counsel requested a continuance to pursue state post-conviction proceedings challenging
Mr. Castillo’s felony criminal trespass and misdemeanor sex assault convictions. He
asserted that but for those two convictions, Mr. Castillo “would be cancellation eligible”
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under the ten-year cancellation of removal defense. Hr’g Tr. of Jul. 9, 2013, ROA at
160.1
The Immigration Judge (“IJ”) orally denied the motion to continue and issued a
written decision ordering Mr. Castillo be removed to Mexico because he entered the
country without inspection or permission and because he had been convicted of a CIMT.
Mr. Castillo appealed to the BIA. He argued the IJ’s denial of his motion to
continue violated his “due process right to file a 35(c) motion pursuant to the Colorado
Rules of Criminal Procedure.” Aplt. BIA Br., ROA at 22. He further argued the
continuance denial and his removal would violate his rights to due process, confrontation,
effective assistance of counsel, state post-conviction procedures, and equal protection.2
1
The ten-year cancellation of removal defense requires, among other things, the
petitioner have no CIMT offenses in his or her criminal history. 8 U.S.C.
§ 1229b(b)(1)(C). Although Mr. Castillo has challenged only two of his three
convictions in Colorado state court, his third conviction for class 2 misdemeanor theft
might not bar cancellation if he qualifies for the petty offense exception. See 8 U.S.C.
§ 1182(a)(2)(A)(ii)(II) (explaining that a conviction shall not be considered a CIMT if
“an alien . . . committed only one crime” for which “the maximum penalty possible . . .
did not exceed imprisonment for one year and . . . the alien was not sentenced to a term of
imprisonment in excess of 6 months”).
2
A noncitizen challenging a removal order must generally exhaust “all
administrative remedies available to the alien as of right,” 8 U.S.C. § 1252(d)(1),
including presenting “the same specific legal theory to the BIA before he or she may
advance it in court,” Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237 (10th Cir. 2010).
However, because “§ 1252(d)(1) requires exhaustion only of ‘remedies available to the
alien as of right’” we do not require the “exhaustion of constitutional challenges to the
immigration laws, because the BIA has no jurisdiction to review such claims.” Vicente-
Elias v. Mukasey, 532 F.3d 1086, 1094 (10th Cir. 2008) (quotations omitted).
As noted below, Mr. Castillo challenges the INA’s definition of conviction in 8
Continued . . .
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On December 23, 2013, the BIA dismissed the appeal, noting Mr. Castillo
admitted the charges supporting removability and reasoning “[t]he fact that the
respondent is pursuing post-conviction relief in the form of a collateral attack on
convictions in criminal court does not affect its finality for federal immigration purposes,
or warrant the grant of a motion to continue.” BIA Order, ROA at 4.
Mr. Castillo was removed to Mexico on January 28, 2014.
II. DISCUSSION
Mr. Castillo has not shown we have jurisdiction under Article III of the
Constitution or the INA to review the denial of his request for a continuance. Green v.
Napolitano, 627 F.3d 1341, 1344 (10th Cir. 2010) (“The party invoking a court’s
jurisdiction bears the burden of establishing it.”).
We discuss (A) the contours of our jurisdiction, (B) Mr. Castillo’s alleged injury,
and (C) why we lack jurisdiction under Article III or the INA.
A. Legal Background on Jurisdiction
1. Article III Standing
Under Article III, Mr. Castillo must establish standing by demonstrating “(1) that
he . . . has ‘suffered an injury in fact;’ (2) that the injury is ‘fairly traceable to the
challenged action of the defendant;’ and, (3) that it is ‘likely’ that ‘the injury will be
U.S.C. § 1101(a)(48)(A). We consider whether that argument is colorable, even though
he did not raise this constitutional challenge to the statute before the BIA, under the
exception noted by Vicente-Elias.
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redressed by a favorable decision.’” Awad v. Ziriax, 670 F.3d 1111, 1120 (10th Cir.
2012) (quoting Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436, 1442 (2011)).
Redressability requires the party seeking relief to show “it is likely, as opposed to
merely speculative, that the injury will be redressed by a favorable decision.” Friends of
the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000); see Duke
Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 75 n.20 (1978) (requiring
“substantial likelihood . . . the relief requested will redress the injury claimed”
(quotations omitted)). “This requirement assures that there is a real need to exercise the
power of judicial review in order to protect the interests of the complaining party.”
Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009) (quotations omitted).
2. Immigration and Nationality Act
Under the INA, we generally lack “jurisdiction to review any final order of
removal against an alien who is removable by reason of having committed a criminal
offense covered in section 1182(a)(2).” 8 U.S.C. § 1252(a)(2)(C); see 8 U.S.C.
§ 1182(a)(2)(A)(i)(I) (authorizing the removal of a noncitizen having a CIMT). But
“[n]othing in . . . [§ 1252(a)(2)](C) . . . shall be construed as precluding review of
constitutional claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D). We therefore have
jurisdiction to review Mr. Castillo’s CIMT-based removal only if he raises colorable
“constitutional or legal challenges to the order.” Waugh v. Holder, 642 F.3d 1279, 1281
(10th Cir. 2011).
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B. Alleged Injury
Mr. Castillo asserts that, had the IJ granted his continuance, his physical presence
would have enabled him to participate fully in the collateral attacks on his convictions,
thereby increasing the prospect of post-conviction relief, which in turn would improve his
chances for cancellation of his removal. He asks us to reverse the denial of his
continuance and order his return to the United States.
Mr. Castillo does not clearly explain his alleged injury. We discern two
possibilities. First, Mr. Castillo’s reply brief identified “deportation to Mexico” as his
“injury.” Aplt. Reply Br. at 2; see also id. (“[Mr.] Castillo has an injury in fact because
he was ordered removed and he was physically removed to Mexico.”). And at oral
argument, his counsel reiterated that Mr. Castillo’s “removal . . . is the standing injury.”
Oral Arg. 11:05-11:18. Second, Mr. Castillo also seems to argue his injury is his
inability to participate in person in his state post-conviction proceedings. See Aplt. Br. at
14, 19-21.
Neither injury invokes our jurisdiction because (1) our ability to redress the
alleged removal injury is no more than speculative, and (2) Mr. Castillo has not raised a
colorable constitutional or legal argument indicating he has a right to be physically
present in the United States during his state post-conviction process.
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C. No Jurisdiction
1. No Article III Standing Redressability
To the extent Mr. Castillo’s alleged injury is his removal, his appeal is
nonjusticiable because he cannot meet the redressability requirement for standing under
Article III of the Constitution.
First, Mr. Castillo has not shown how granting him a continuance and returning
him to the United States—the remedy he seeks here—will make success in his post-
conviction challenges more likely and enable him to seek cancellation of removal. To
cancel his removal, Mr. Castillo must succeed in his two collateral challenges and
convince the IJ his remaining conviction does not bar a request for cancellation. This
“prospect . . . can, at best, be termed only speculative.” Linda R.S. v. Richard D., 410
U.S. 614, 618 (1972). And it is purely conjectural whether his physical presence at his
post-conviction proceedings would make any difference. See Warth v. Seldin, 422 U.S.
490, 507-08 (1975) (“[P]etitioners rely on little more than the remote possibility,
unsubstantiated by allegations of fact, that their situation might have been better had
respondents acted otherwise, and might improve were the court to afford relief. . . . [A]
plaintiff . . . must allege specific, concrete facts demonstrating . . . that he personally
would benefit in a tangible way from the court’s intervention.”).
Second, the likelihood that a favorable decision from this court would redress Mr.
Castillo’s removal injury is especially dubious given the barriers to his post-conviction
relief. Mr. Castillo has not proffered evidence, legal argument, or even allegations
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indicating how his state collateral attacks—brought more than ten years after his most
recent conviction—can overcome Colorado’s three-year and 18-month statute of
limitations for post-conviction challenges to felonies (other than class 1) and
misdemeanors, respectively. See Colo. Rev. Stat. § 16-5-402(1).
Finally, Mr. Castillo’s ability to seek cancellation of removal depends on decisions
of third-parties—in this instance, the Colorado courts—acting independently of these
proceedings. It is “speculative whether the desired exercise of the court’s remedial
powers”—here, granting Mr. Castillo’s requests for continuance and parole—“would
result in” vacating his convictions and ultimately in the cancellation of his removal.
Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 43 (1976); see Baca v. King, 92 F.3d
1031, 1037 (10th Cir. 1996) (concluding plaintiff lacked standing because adequate
redress was contingent on the decision of a third party).
For these reasons, Mr. Castillo has not shown how this court can redress his
alleged removal injury. He therefore lacks standing.
2. No INA Jurisdiction
To the extent Mr. Castillo’s injury is his absence from his state post-conviction
proceedings, we question (a) whether his claim survives the finality of his state trial
judgments of guilt; but even if it does, we conclude (b) Mr. Castillo has not advanced a
colorable constitutional or legal argument to invoke our jurisdiction under the INA.
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a. Tenth Circuit cases on finality of convictions for removal
We have held that
an alien is lawfully deportable as soon as a formal judgment of guilt is
entered by a trial court. Thus, while the alien may have the right to pursue
appellate or collateral relief for [the conviction on which removal is based],
the government need not wait until all these avenues are exhausted before
deporting him.
Waugh, 642 F.3d at 1284 (quoting United States v. Adame-Orozco, 607 F.3d 647, 653
(10th Cir. 2010)).
Indeed, in Waugh, the petitioner asked the IJ and the BIA, similarly to Mr. Castillo
here, to continue his removal proceeding until his motion to withdraw his guilty plea to
the removable offense was resolved in state court. 642 F.3d at 1280-81. When the
petitioner challenged the IJ’s and BIA’s rejection of that request, arguing denial of due
process, we identified his “true objection” as complaining about the discretionary denial
of his wish for a continuance, which “raises neither a constitutional nor a legal issue, so
we are without jurisdiction to review it.” Id. at 1284-85 (citing 8 U.S.C. § 1252(a)(2)).
In the face of this precedent, Mr. Castillo attempts a potpourri of constitutional or
legal arguments to avoid § 1252(a)(2)(C)’s jurisdictional limit on review of removal
orders—in this case review of the denial of his motion for continuance. Adame-Orozco
and Waugh may be sufficient to dispose of these arguments. But because the case law on
the scope of § 1252(a)(2)(D) is not clear, we will briefly explain why not one of Mr.
Castillo’s arguments is colorable.
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b. No colorable constitutional or legal claims
As noted previously, we lack authority to review removal orders based on CIMT-
status unless the petitioner raises colorable constitutional or legal challenges. See 8
U.S.C. § 1252(a)(2)(C) & (D); Alzainati v. Holder, 568 F.3d 844, 850-51 (10th Cir.
2009). To be colorable, “the alleged violation need not be ‘substantial,’ but the claim
must have some possible validity.” Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir.
2001) (citations omitted). The “talismanic” use of “the terms conventionally used in
describing constitutional claims and questions of law will not overcome Congress’s
decision to deny jurisdiction” under § 1252(a)(2)(C). Carcamo v. U.S. Dep’t of Justice,
498 F.3d 94, 98 (2d Cir. 2007) (quotations omitted). Indeed, “[m]ere reference to a legal
standard or a constitutional provision . . . does not convert a discretionary decision into a
reviewable legal or constitutional question.” Moral-Salazar v. Holder, 708 F.3d 957, 962
(7th Cir. 2013). The discretionary decision here was the denial of Mr. Castillo’s request
for continuance.
Mr. Castillo argues his removal prevented his physical presence at his post-
conviction proceedings and thereby violated his rights to substantive and procedural due
process, confrontation, effective assistance of counsel, and state procedural rights. He
also argues the INA’s definition of “conviction” in 8 U.S.C. § 1101(a)(48)(A) allows
immigration courts to rely on convictions that have not been challenged in state post-
conviction proceedings, and this violates his rights to substantive and procedural due
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process, effective assistance of counsel, state procedural rights, the Tenth Amendment,
and equal protection.
i. Substantive and Procedural Due Process
Mr. Castillo claims he cannot “meaningfully participate in his pending post-
conviction appeals,” Aplt. Br. at 16, in violation of his substantive and procedural “due
process rights guaranteed in the United Sates Constitution, specifically the Fifth and
Sixth Amendments,” id. at 9. But he fails to explain how these rights have been violated
or how his physical presence is required to vindicate them. He provides no legal
authority or other support regarding substantive due process. Nor has he shown how
removal has infringed a procedural right in either his immigration or state post-conviction
proceedings.
His argument is inadequately briefed. See Bronson v. Swensen, 500 F.3d 1099,
1104 (10th Cir. 2007) (“[W]e routinely have declined to consider arguments that are not
raised, or are inadequately presented, in an appellant’s opening brief.”); Perry v.
Woodward, 199 F.3d 1126, 1141 n.13 (10th Cir. 1999) (declining to address an argument
because the defendants “have not adequately developed the argument,” and “[t]his court
. . . will not craft a party’s arguments for him.”). An argument not adequately briefed is
not colorable.
ii. Confrontation Clause
Mr. Castillo contends he must be present at “every stage of the trial,” Aplt. Br. at
17, including “[p]ost-conviction . . . evidentiary hearings to be held by the trial court,”
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id., to protect his rights under the Confrontation Clause, which states “in all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him.” U.S. Const. amend. VI. Other than broadly asserting he must be
“physically present,” Aplt. Br. at 17, Mr. Castillo fails to identify any witness who might
testify against him, a necessary predicate for confrontation protection. More
fundamentally, the Confrontation Clause “does not require that a defendant be present at
all proceedings.” Bland v. Sirmons, 459 F.3d 999, 1020 (10th Cir. 2006). Mr. Castillo
has not cited any authority that extends the Confrontation Clause to Colorado’s post-
conviction setting. Indeed, the First Circuit has concluded “that the Confrontation Clause
does not apply to state post-conviction proceedings.” Oken v. Warden, MSP, 233 F.3d
86, 93 (1st Cir. 2000).
iii. Effective Assistance of Counsel
Mr. Castillo argues the denial of a continuance and his removal denied him “a full
and fair opportunity” to pursue state post-conviction claims of ineffective assistance.
Aplt. Br. at 14. But this is just another way of asserting he must be physically present.
Through counsel, he has filed for post-conviction relief in the Colorado courts alleging
ineffective assistance of counsel. Those proceedings are pending at the Colorado Court
of Appeals. The IJ’s denial of a continuance has not prevented him from pursuing
collateral challenges or invoking his constitutional claims there, and nothing in the record
or his arguments indicates he must be physically present to pursue his claim of ineffective
assistance of counsel.
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iv. Colorado Rule of Criminal Procedure 35
Mr. Castillo argues the denial of a continuance and immediate removal violated
his right to be present at his post-conviction proceedings under Colorado Rule of
Criminal Procedure 35 (“Rule 35”). Colo. R. Crim. P. 35. But the rule does not establish
a general right to be present. It does afford a post-conviction evidentiary hearing if
certain criteria are met, id. 35(c)(2)(I)-(VII), and even then only if the court cannot
otherwise enter a ruling “based on the pleadings,” id. 35(c)(3)(V).3 Mr. Castillo
interprets this provision as granting him a right to be present. But nothing in the rule
states when or even if a petitioner has a right to attend a post-conviction evidentiary
hearing.
Mr. Castillo cites to case law that interpreted a prior version of Rule 35 for the
proposition that a trial court must hold an evidentiary hearing “upon receipt of a motion
for postconviction relief under Rule 35(c).” People v. Simpson, 69 P.3d 79, 81 (Colo.
2003) (en banc) (interpreting Colo. R. Crim. P. 35(c)(3) (1999)). He concludes this
mandatory language means “he needs to be physically present to litigate his post-
conviction appeals.” Aplt. Br. at 17. But just because an evidentiary hearing must be
held does not mean, without more, the petitioner has a right to be there.
3
Mr. Castillo quotes Rule 35 as saying “‘Upon receipt of a motion for
postconviction relief under Rule 35(c), a trial court must hold an evidentiary hearing . . .’
Crim. P. 35(c)(3).” Aplt. Br. at 17 (citation and alteration in original). That language,
however, appears nowhere in Rule 35.
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Whether under the old Rule 35(c) or the current one, Mr. Castillo fails to show—
even if the Colorado courts were to hold an evidentiary hearing on his post-conviction
motions—his physical presence is needed or required. We can only speculate whether
Mr. Castillo’s post-conviction motions even qualify for such a hearing, much less one
that would require his physical presence.
v. Tenth Amendment
Mr. Castillo argues 8 U.S.C. § 1101(a)(48)(A)’s definition of “conviction”
underlying the denial of his request for a continuance and his immediate removal
interferes with “state criminal procedure” in violation of the Tenth Amendment. Aplt.
Br. at 23.
Mr. Castillo has not shown how the statute interferes with his state post-conviction
proceedings. He has filed his collateral challenges, and they are being considered. He
has not even raised a colorable claim that his physical presence is needed or required in
these proceedings. Moreover, Mr. Castillo’s invocation of the Tenth Amendment and
Colorado’s police powers over criminal proceedings (including post-conviction
proceedings) makes no attempt to overcome case law recognizing Congress’s authority
under the Immigration Clause of the Constitution to displace or preempt state laws,
including those normally reserved to the states’ police powers. See Lopez v. INS, 758
F.2d 1390, 1392 (10th Cir. 1985) (indicating Congress’s authority over immigration may
sometimes preempt even “the States’ exercise of their police powers” (quotations
omitted)); see also Arizona v. United States, 132 S. Ct. 2492, 2505 (2012) (stating in an
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immigration case “[t]he ordinary principles of preemption include the well-settled
proposition that a state law is preempted where it stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of Congress”
(quotations omitted)).
vi. Equal Protection
Mr. Castillo argues the INA’s definition of “conviction” authorizes immigration
courts to begin removal proceedings as soon as a trial court enters a final judgment of
guilt, 8 U.S.C. § 1101(a)(48)(A), and therefore discriminates against noncitizens who
wish to seek post-conviction relief in Colorado.
Mr. Castillo’s confusing and conclusory argument is not adequately briefed, and
we do not consider it. See Bronson, 500 F.3d at 1104.
He plainly has not raised a colorable claim. Mr. Castillo “argues that he is being
treated different from similarly situated criminal defendants based upon his alienage,”
Aplt. Reply Br. at 11; see Aplt. Br. at 10-11 (characterizing the issue as “whether
alienage justifies denying non-citizens constitutional protections afforded to citizen-
criminal defendants”). But citizens and noncitizens are not similarly situated for
purposes of equal protection in the context of immigration law. Demore v. Kim, 538 U.S.
510, 521 (2003) (“In the exercise of its broad power over naturalization and immigration,
Congress regularly makes rules that would be unacceptable if applied to citizens”
(quotations omitted)); United States v. Huitron-Guizar, 678 F.3d 1164, 1167 (10th Cir.
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2012) (“Equal protection requires that similarly situated individuals be treated similarly;
aliens, let alone those unlawfully here, are simply not situated like citizens.”).
vii. Other challenges to 8 U.S.C. § 1101(a)(48)(A)
In addition to his Tenth Amendment and equal protection challenges to
§ 1101(a)(48)(A), Mr. Castillo also alleges the statute violates substantive and procedural
due process, effective assistance of counsel, and Colorado Rule of Criminal Procedure
35. Those arguments fail to state a colorable claim for the same reasons we discussed
above.
* * *
For the foregoing reasons, Mr. Castillo has not raised colorable constitutional or
legal arguments, and we lack jurisdiction under the INA.
III. CONCLUSION
We dismiss Mr. Castillo’s petition for lack of jurisdiction under Article III of the
Constitution or 8 U.S.C. § 1252(a)(2)(C). We grant his motion to proceed in forma
pauperis.
ENTERED FOR THE COURT
Scott M. Matheson, Jr.
Circuit Judge
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