Case Information
*1 Before: SCIRICA, SMITH and VANASKIE, Circuit Judges
(Opinion filed April 29, 2011 )
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OPINION
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PER CURIAM
Orlаndo 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 аdmitted 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 fivе 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.
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,
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 *4 “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. Mеdina 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,
Medina has timely petitiоned 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 finаl 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 reviеwing 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 jurisdiсtion to review constitutional claims or questions of law, INA § 242(a)(2)(d), 8 U.S.C. § 1252(a)(2)(D).
Medina does not challenge that he is removable for having been convicted of an aggravated felony [2] or a controlled substance offense. Instead, he contends thаt 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 defeсt 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 assistancе 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 pоst-conviction petition.
*7
Applying Padilla and Strickland v. Washington,
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 onе 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.,
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 сounsel’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, becаuse 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.,
Last, thе 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 considеred. 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 оf his brief by the absence of that transcript.
*9 For the foregoing reasons, we will deny the petition for review.
Notes
[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. Steelе,
[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.
[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.