NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 21-2369
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MARCOS ANTONIA CASTILLO HIDALGO,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
_______________
On Petition for Review of an Order of the
Board of Immigration Appeals
(BIA 1:A043-249-202)
Immigration Judge: Jason L. Pope
_______________
Submitted Under Third Circuit L.A.R. 34.1(a)
November 7, 2022
Before: JORDAN, SCIRICA and RENDELL, Circuit Judges
(Filed: November 21, 2022)
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OPINION ∗
_______________
∗
This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
JORDAN, Circuit Judge.
Petitioner Marcos Castillo Hidalgo, 1 a native and citizen of the Dominican
Republic, conceded his removability before an Immigration Judge (“IJ”). He did so on
the basis of his earlier guilty plea to a drug offense, though he contested whether that
conviction barred him from seeking cancellation of removal. When the IJ concluded that
the conviction did create such a bar and ordered him removed, Castillo Hidalgo sought
review by the Board of Immigration Appeals. Meanwhile, a state court concluded on
collateral review that Castillo Hidalgo had made a prima facie case that his guilty plea
was the result of ineffective assistance of counsel. With that ruling in hand, Castillo
Hidalgo moved to remand his case to the IJ with instructions to reinstate his application
for cancellation of removal and to calendar a merits hearing. The BIA nevertheless
affirmed the IJ’s decision and, in the process, denied his motion to remand. Before us
now, Castillo Hidalgo seeks only review of the denial of his motion to remand. We will
deny his petition for review.
I. BACKGROUND
Castillo Hidalgo was admitted to United States as a lawful permanent resident in
1992 at the age of nine. In October 2019, he pled guilty to manufacturing, distributing, or
1
While there are a few instances in which the Petitioner’s name is given as
Castillo-Hidalgo, we have used the spelling that appears more frequently, including in his
petition for review.
2
possessing with intent to distribute a controlled dangerous substance, in violation of N.J.
Stat. Ann. §§ 2C:35-5A(1) and -5B(2), and was sentenced to three years’ imprisonment. 2
The Department of Homeland Security commenced removal proceedings against
him in July 2020. He was served with a Notice to Appear charging that his conviction
rendered him subject to removal because it was an offense relating to a federally
controlled substance under 8 U.S.C. § 1227(a)(2)(B)(i), and also because it was an
aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii).
Before the IJ, Castillo Hidalgo admitted the factual allegations against him and
conceded his removability on the first ground. He contested the second ground, as a
conviction for an aggravated felony would render him ineligible for cancellation of
removal under 8 U.S.C. § 1229b. And, indeed, he filed an application for cancellation of
removal.
After an interim decision from the IJ holding that his conviction is an aggravated
felony, Castillo Hidalgo declined to seek any other form of relief or protection from
removal. Instead, he indicated his intent to appeal the aggravated felony ruling and
pursue cancellation of removal. The IJ then issued an oral decision incorporating the
interim decision and ordering Castillo Hidalgo’s removal to the Dominican Republic. On
appeal to the BIA, Castillo Hidalgo argued only that his conviction was not for an
aggravated felony.
The Judgment of Conviction & Order for Commitment notes the substance as
2
“HEROIN/COCAINE.” (A.R. at 424.)
3
While his BIA appeal was pending, Castillo Hidalgo filed a petition for post-
conviction relief in the Superior Court of New Jersey, seeking to vacate his conviction.
He claimed that he would have contested the charges against him had he not been
erroneously advised by his criminal defense attorney that he would not be subject to
deportation if he pled guilty, successfully completed the requirements set by a “drug
court,” and had his conviction expunged. (Opening Br. at 10-11; A.R. at 34.) The State
opposed this petition and urged that his case be dismissed without an evidentiary hearing.
On June 7, 2021, the Superior Court issued an order, stating that Castillo Hidalgo
had made a prima facie case of ineffective assistance of counsel under both prongs of
Strickland v. Washington, 466 U.S. 668 (1984), because it appeared defense counsel had
failed to adequately advise him of the immigration consequences of his plea. On that
same day, Castillo Hidalgo asked the BIA to remand the matter to the IJ with instructions
to reinstate the application for cancellation of removal and to calendar a merits hearing,
“[i]n light of the finding of a prima facie case of ineffective assistance counsel[.]” (A.R.
at 10.)
The BIA ultimately denied the motion to remand and instead adopted and affirmed
the IJ’s decision. Regarding remand, the BIA said:
Because the respondent has not shown that his conviction has been vacated,
nor has he shown that he seeks to vacate his conviction on the basis of a
procedural or substantive defect in the underlying proceedings, he has not
established that the evidence presented with his motion is likely to change
the result in this case. Therefore, we deny the respondent’s motion to
remand.
(A.R. at 5 (citations omitted).)
4
This timely petition for review followed. 3
II. DISCUSSION
Castillo Hidalgo now concedes that his state conviction constitutes an aggravated
felony for immigration purposes; that, if he is to avoid the immigration consequences
attendant to that fact, his conviction would have to be vacated; and that his motion to
remand did not demonstrate his conviction had been vacated. Nevertheless, he argues
that we should grant his petition because two legal errors underlie the denial of his
motion to remand. First, he says, the BIA erred in concluding that vacatur of his
conviction is necessary to demonstrate the requisite likelihood of a different outcome in
his criminal case. He believes the New Jersey Superior Court’s prima facie ruling is
enough to warrant remand to the IJ for further proceedings on an application for
cancellation of removal. Second, he says, the BIA erred in concluding that a conviction
vacated for ineffective of assistance of counsel would nevertheless remain a conviction
for immigration purposes under Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003),
rev’d on other grounds, 465 F.3d 263 (6th Cir. 2006). As he did before the BIA, he asks
that his case be remanded to the BIA with instructions for the IJ to reinstate his
application for cancellation of removal and to calendar a merits hearing.
The government argues that we do not have jurisdiction to reach the merits of
those arguments, given Castillo Hidalgo’s concessions and the BIA’s discretion to deny
motions for remand. Furthermore, the government argues, even if we had jurisdiction,
3
Additionally, he filed a motion for stay of removal, which was denied.
5
we should deny the petition because Castillo Hidalgo is categorically ineligible for
cancellation of removal until his aggravated felony conviction is vacated. While we
disagree with the government as to our jurisdiction, we agree on the second point and will
deny the petition on that basis.
A. Jurisdiction 4
As a threshold matter, we must determine whether we have jurisdiction to consider
the two issues Castillo Hidalgo has raised. Although § 1252(a)(2)(C) of title 8 generally
strips our jurisdiction to review final orders of removal for aliens convicted of an
aggravated felony under § 1227(a)(2)(A)(iii), we nevertheless have jurisdiction under
§ 1252(a)(2)(D) to review “colorable legal or constitutional issues that [the petition for
review] raises.” Cruz v. Att’y Gen., 452 F.3d 240, 247 (3d Cir. 2006). “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.’” Pareja v.
Att’y Gen., 615 F.3d 180, 186-87 (3d Cir. 2010) (quoting Arbaugh v. Y & H Corp., 546
U.S. 500, 513 n.10 (2006)). “The question of our jurisdiction over a colorable legal claim
does not turn on whether that claim is ultimately meritorious.” Id. at 187.
The two supposed legal errors Castillo Hidalgo has identified do raise colorable
issues and are sufficient to establish our jurisdiction. 5 Contrary to the government’s
4
The BIA had jurisdiction pursuant to 8 C.F.R. §§ 1003.1(b)(3) and 1003.2. As
discussed herein, we have jurisdiction under 8 U.S.C. § 1252(a)(2)(D).
As we have determined we have jurisdiction under 8 U.S.C. § 1252(a)(2)(D), the
5
government’s motion to dismiss will be denied.
6
suggestion, this is so even though they relate to a motion seeking a discretionary
determination on a motion to remand. Pareja, 615 F.3d at 187-88 (explaining that even
where an ultimate determination is discretionary, we have jurisdiction to review when the
BIA is alleged to have made that determination based on “an erroneous legal standard” or
“fact-finding which is flawed by an error of law”); see also Huang v. Att’y Gen., 620 F.3d
372, 390 (3d Cir. 2010) (“We review the denial of a motion to remand or to reopen for
abuse of discretion[.]”).
B. The Motion to Remand 6
It was not an abuse of discretion to deny Castillo Hidalgo’s motion to remand if he
“would not be entitled to relief [on his application for cancellation of removal] even if the
motion was granted.” Huang, 620 F.3d at 389. And that is the case here. Castillo
Hidalgo is categorically ineligible for cancellation of removal unless and until his
aggravated felony conviction is vacated. See Singh v. Att’y Gen., 807 F.3d 547, 550 (3d
Cir. 2015) (explaining that “[f]or a lawful permanent resident to be eligible for
cancellation of removal, he or she must satisfy three requirements[,]” including
“establish[ing] that he has not been convicted of an ‘aggravated felony’”) (quoting 8
U.S.C. § 1229b(a)). His motion to remand did not (and could not) demonstrate that his
conviction had been vacated, because, as far as we know, it has not been. See Paredes v.
6
A motion to remand to pursue an application for discretionary relief, such as
cancellation of removal, Pareja, 615 F.3d at 186, may be denied on the basis that, “the
alien would not be entitled to [the discretionary] relief [sought] even if the motion was
granted,” Huang, 620 F.3d at 389. A denial on that basis is reviewed for abuse of
discretion. Korytnyuk v. Ashcroft, 396 F.3d 272, 284 (3d Cir. 2005).
7
Att’y Gen., 528 F.3d 196, 198-99 (3d Cir. 2008) (adopting the rule that “the pendency of
post-conviction motions or other forms of collateral attack” do “not vitiate finality, unless
and until the convictions are overturned as a result of the collateral motions”).
We may deny a petition for review of an agency decision if the decision was
correct; indeed, we may do so even if the agency “relied upon a wrong ground or gave a
wrong reason.” Helvering v. Gowran, 302 U.S. 238, 245 (1937) (articulating the general
rule in connection with review of decision of the Board of Tax Appeals); see also Sec. &
Exch. Comm’n v. Chenery Corp., 318 U.S. 80, 88 (1943) (same in connection with
review of an order of the Securities and Exchange Commission). Here, it was no abuse
of discretion to deny the relief Castillo Hidalgo sought in his motion to remand (and now
seeks in his petition) namely, reinstatement of his application for cancellation of removal
and calendaring a merits hearing on it, because, until he demonstrates that his conviction
has been vacated, he is still categorically ineligible for cancellation of removal. So, we
will deny his petition. 7
Judicial economy, however, prompts us to address a point that may arise if
Castillo Hidalgo’s conviction is vacated. “A petitioner whose criminal conviction was
vacated is no longer ‘convicted’ [for immigration purposes] where the conviction was
vacated on the basis of a substantive or procedural defect in the underlying criminal
7
The government correctly observes, however, that if his aggravated felony
conviction is ultimately vacated, he may file a motion to reopen. See Cruz, 452 F.3d at
246 (“A motion to reopen is the proper means for an alien who has been ordered removed
due to a conviction to challenge his removal after that conviction is vacated.”).
8
proceedings.” Rodriguez v. Att’y Gen., 844 F.3d 392, 396 (3d Cir. 2016) (citing Matter
of Pickering, 23 I. & N. Dec. at 624). The BIA’s discussion on this point can plausibly
be read to suggest that a conviction vacated due to a Sixth Amendment violation under
Strickland, 466 U.S. 668, and Padilla v. Kentucky, 559 U.S. 356 (2010), would not be
sufficient under Matter of Pickering, 23 I. & N. Dec. 621, to warrant revisiting by
immigration authorities. If that is what the BIA meant to convey, it was error. Pinho v.
Gonzales, 432 F.3d 193, 210 (3d Cir. 2005) (“[A]n alien whose conviction is vacated on
collateral attack because the alien’s [criminal defense] counsel was ineffective under the
Sixth Amendment, no longer stands ‘convicted’ for immigration purposes.”). Further
discussion on this point is unwarranted now, however, as the basis for vacatur can be
determined only if and when the conviction has actually been vacated. Id. at 215 (“To
determine the basis for a vacatur order, the agency must look first to the order itself.”).
III. CONCLUSION
For the foregoing reasons, we will deny the petition for review, and the
government’s motion to dismiss will be denied.
9