Elman Marroquin v. Attorney General United States ( 2019 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 18-1662
___________
ELMAN JOAQUIN MARROQUIN,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A208-934-654)
Immigration Judge: Leo A. Finston
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 7, 2018
Before: MCKEE, COWEN and ROTH, Circuit Judges
(Opinion filed: October 29, 2019)
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OPINION *
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PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Elman Joaquin Marroquin petitions for review of an order of the Board of
Immigration Appeals (“BIA”), which dismissed his appeal from an Immigration Judge’s
(“IJ”) removal order. We will deny the petition for review.
Marroquin, a native and citizen of Guatemala, was charged as removable for being
present in the United States without having been admitted or paroled. He conceded the
allegations against him and sought cancellation of removal under 8 U.S.C. § 1229b(b).
The IJ ordered Marroquin removed. The IJ concluded that Marroquin was ineligible for
cancellation because he could not show good moral character under the statute after
having been in jail for 180 days as a result of a conviction. On appeal, the BIA agreed
with the IJ and dismissed the appeal. Marroquin filed a timely petition for review. 1
Under 8 U.S.C. § 1252(a)(2)(B)(i), we lack jurisdiction to review “any judgment
regarding the granting of relief under section . . . 1229b.” However, that provision
applies only to discretionary aspects of the denial of cancellation of removal. See
Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 178 (3d Cir. 2003) (“We join the other
circuits and conclude that, for nondiscretionary factors, the Court maintains jurisdiction,
but as to discretionary decisions we lack jurisdiction.”). Thus, we would have
jurisdiction to consider some aspects of the BIA’s decision here, such as whether
Marroquin met the statutory requirements to be potentially eligible for cancellation of
removal. 2
1
We granted his motion for a stay of removal.
2
To be eligible for cancellation of removal, Marroquin had to establish that he met
four requirements: continuous physical presence in the United States of not less than 10
2
However, in his opening brief, Marroquin does not challenge the BIA’s decision in
any way. Instead, he simply notes that he is “waiting on the Judges [sic] decision” in a
post-conviction proceeding that he apparently filed in New Jersey earlier this year. But
the pendency of a collateral challenge to a conviction does not affect the finality of the
conviction for immigration purposes. See Paredes v. Att’y Gen., 528 F.3d 196, 198-99
(3d Cir. 2008).
Because Marroquin has failed to raise any other issues in his opening brief, he has
waived those issues on petition for review. See Chen v. Ashcroft, 381 F.3d 221, 235 (3d
Cir. 2004). Marroquin’s pro se reply brief, without making any argument on the issue,
asks us to consider whether his time in pretrial detention counts as time confined “as a
result of a conviction,” for purposes of 8 U.S.C. § 1101(f)(7). 3 But raising an issue for
the first time in a reply brief does not suffice to bring it before us for review. See
Gambino v. Morris, 134 F.3d 156, 161 n.10 (3d Cir. 1998).
For the foregoing, we will deny the petition for review.
years; good moral character; an absence of certain disqualifying criminal convictions;
and exceptional and extremely unusual hardship to a qualifying relative who is a United
States citizen or lawful permanent resident as a result of his removal. See 8 U.S.C.
§ 1229b(b)(1); see also Pareja v. Att’y Gen., 615 F.3d 180, 185 (3d Cir. 2010)
(explaining that someone who has conceded removability and seeks cancellation of
removal has the burden of showing eligibility for cancellation).
3
Notably, in our order granting Marroquin’s stay motion, we explicitly ordered the
parties to address this issue in their briefs. Marroquin failed to do so.
3