Not Precedential

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT
_______________
No. 14-3464
_______________
PAULA CRUZ DE ORTIZ,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
_______________
On Petition for Review of an Order of the
Board of Immigration Appeals
(BIA1 A044-927-258)
Immigration Judge: Honorable Annie S. Garcy
_______________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 21, 2015
BEFORE: FISHER, CHAGARES AND COWEN, Circuit Judges
(Filed: May 11, 2015)
_______________
OPINION*
_______________
______________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
COWEN, Circuit Judge.

Paula Cruz de Ortiz petitions for review of a decision by the Board of Immigration
Appeals (BIA), which, in turn, dismissed her administrative appeal from the decision of
the Immigration Judge (IJ) pretermitting her application for cancellation of removal,
denying her request for a continuance, and ordering her removal. We will deny her
petition for review.
I.
In 1989, Petitioner, a native and citizen of the Dominican Republic, attempted to
enter the United States with an altered passport. Petitioner was convicted of forgery or
false use of a passport in violation of 18 U.S.C. 1543 and deported. Subsequently, her
husband (a United States citizen) filed an I-130 petition for alien relative, which was
approved. A visa was issued for Petitioner by the American embassy, and she was
admitted to the United States as a conditional lawful permanent resident on February 9,
1995. However, neither Petitioner nor her husband disclosed the existence of Petitioners
prior conviction. On December 24, 1996, Petitioner filed an I-751 petition to remove the
conditions of her residency. This I-751 petition was approved on December 30, 1996.
On June 27, 2009, the Department of Homeland Security (DHS) charged that
Petitioner was removable pursuant to 8 U.S.C. 1227(a)(1)(A) as an alien who was
convicted of a crime involving moral turpitude under 8 U.S.C. 1182(a)(2)(A)(i)(I) and
who was inadmissible at the time of entry under 8 U.S.C. 1182(a)(6)(C)(i) and 8 U.S.C.
1182(a)(7)(A)(i)(I). Petitioner moved to terminate the removal proceedings on the
2
ground that, under 8 U.S.C. 1256(a), DHS had no legal authority to initiate removal
proceedings more than five years from the date of her purported adjustment of status.
The IJ agreed with the Petitioner and dismissed the case. In a published decision, In re
Cruz de Ortiz, 25 I. & N. Dec. 601 (BIA Sept. 20, 2011), the BIA sustained DHSs appeal
and remanded the case to give Petitioner an opportunity to apply for any relief for which
she may be eligible (and to allow the IJ to enter a new decision). On remand, the IJ
pretermitted Petitioners application for cancellation and ordered her to be removed. The
IJ also denied her motion to postpone because no I-130 petition (which could lead to an
inadmissibility waiver) had been filed on Petitioners behalf. Petitioner appealed to the
BIA, but the BIA dismissed her appeal.1
II.
The BIA recognized that this Court has held that the five-year statute of limitations
established by 1256(a) extends to removal proceedings where the grounds of
removability are based on the aliens fraud or misrepresentation in obtaining adjustment
of status.2 See Garcia v. Attorney General, 553 F.3d 724, 725-29 (3d Cir. 2009);
Bamidele v. INS, 99 F.3d 557, 558-65 (3d Cir. 1996). However, the agency determined
Petitioner filed a motion to reopen proceedings, which included proof that her
United States citizen daughter submitted an I-130 petition on her behalf (after the IJs
decision was issued). The IJ denied the motion on jurisdictional grounds (i.e., by the time
the motion was filed, there was an appeal pending with the BIA), and Petitioner did not
appeal to the BIA from this denial of her motion to reopen. According to Petitioner, the
daughters petition has been approved.
2
We generally possess jurisdiction over this petition for review pursuant to 8

U.S.C. 1252.
3
that this provision does not apply to an alien who was admitted as a lawful permanent
resident from abroad and whose status was therefore never adjusted. De Ortiz, 25 I. &
N. Dec. at 604. According to Petitioner, the BIA erred in failing to sua sponte terminate
proceedings pursuant to 8 U.S.C. 1256(a), which Petitioner submits, barred the
institution of removal proceedings against her, as she adjusted her status, from conditional
to permanent resident, within the United States. (Petitioners Brief at 7.) We agree with
the Attorney General that the removal of conditions to lawful permanent residency does
not fall under 1256(a). Specifically, Petitioner did not file an application for adjustment
of status to become a lawful permanent resident. Instead, she was admitted as a lawful
permanent resident through the consular process and remained a lawful permanent
resident when the conditions were removed. See, e.g., Malik v. Attorney General, 659
F.3d 253, 257 (3d Cir. 2011) (Malik did not obtain an adjustment of status to become an
LPR [lawful permanent resident]. Instead, he derived his LPR status through the process
described in 8 U.S.C. 1201. Because 1256(a) explicitly discusses adjustment of
status, the statute of limitations does not apply to the institution of removal proceedings
where Malik did not obtain his LPR status in this manner.).
Petitioner further contends that she was entitled to a continuance and that the IJs
refusal to grant her a continuance violated her due process right to a full and fair hearing.
This Court does not have jurisdiction to review a final order of removal against an alien
who is removable by reason of having committed a crime involving moral turpitude,
although we do retain jurisdiction with respect to colorable constitutional and legal
4
claims. See, e.g., 8 U.S.C. 1252(a)(2)(C), (D). We accordingly lack jurisdiction to

consider a claim that the agency abused its discretion by denying a continuance. See, e.g.,
Rachak v. Attorney General, 734 F.3d 214, 216-17 (3d Cir. 2013). With respect to
Petitioners due process assertions, we conclude that the IJ conducted a full and fair
hearing in this matter. We note, for instance, that Petitioners counsel notified the IJ at a
2010 hearing that she would be filing for a waiver of inadmissibility on the grounds that
she has two U.S. citizen children. (AR57.) When asked how much time would be
necessary to present evidence in support of a waiver, the attorney responded, Not long.
(AR59.) However, no I-130 petition had been submitted as of the February 2013 merits
hearingat which time the IJ appropriately refused to postpone this proceeding.
III.
For the foregoing reasons, we will deny the petition for review.

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UNITED STATES COURT OF APPEALS

COWEN, Circuit Judge.

We generally possess jurisdiction over this petition for review pursuant to 8

claims. See, e.g., 8 U.S.C. 1252(a)(2)(C), (D). We accordingly lack jurisdiction to

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