                                              NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                 ____________

                     No. 10-2538
                    ____________

            ORLANDO MEDINA LOPEZ
             a/k/a ORLANDO MEDINA

                ORLANDO MEDINA,

                               Petitioner

                          v.


  ATTORNEY GENERAL OF THE UNITED STATES
      __________________________________

         On a Petition For Review of an Order
          of the Board of Immigration Appeals
              (Agency No. A044-044-570)
         Immigration Judge: Walter A. Durling
       __________________________________

    Submitted Pursuant to Third Circuit LAR 34.1(a)
                    April 22, 2011

Before: SCIRICA, SMITH and VANASKIE, Circuit Judges

            (Opinion filed April 29, 2011 )
                   ____________

                      OPINION
                    ____________
PER CURIAM

       Orlando 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 admitted 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 five 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.

                                             2
       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, 236 F.3d 130, 135 (3d Cir. 2001), A.R. 116. Counsel

asked for additional time to brief the issue, but the IJ declined to grant him a continuance.

The IJ noted that, as to the validity of the conviction itself, Medina had yet to file a

motion for post-conviction relief in state court. A.R. 119-20. As to counsel’s request for

further time to brief the aggravated felony issue, the IJ observed that Steele had never

been extended to a sale of cocaine. A.R. 118-19, 121.1 The IJ issued an oral decision on

the same day as the hearing, finding Medina removable as charged, denying his motion

for a continuance, and ordering him removed to the Dominican Republic.

       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

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. Steele, 236 F. 3d at 131.

                                             3
“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.

Medina 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, 130 S. Ct. 1473 (2010), the Board saw no

evidence to support an argument that Medina’s guilty plea was involuntary because

criminal trial counsel failed to warn him about the deportation consequences of his

conviction, and, in any event, his argument was “in the nature of collateral attacks on his

conviction,” which neither the Board nor the IJ could entertain. A.R. 3. As to the

contention that immigration counsel had rendered ineffective assistance in arguing the

finality issue before the IJ, the Board determined that the claim could not proceed

because Medina had not complied with the procedural requirements of Matter of Lozada,

19 I. & N. Dec. 637 (BIA 1988). In a footnote, the Board denied Medina’s motion to

                                            4
hold his appeal in abeyance, noting that the Administrative Record contained all of the

transcripts, and Medina had not alleged that he was unable to prepare his brief due to

missing transcripts.

       Medina has timely petitioned 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 final 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 reviewing 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 jurisdiction to review constitutional claims or questions of

law, INA § 242(a)(2)(d), 8 U.S.C. § 1252(a)(2)(D).




                                               5
       Medina does not challenge that he is removable for having been convicted of an

aggravated felony2 or a controlled substance offense. Instead, he contends that 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 defect 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 assistance

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

post-conviction petition.


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.
                                             6
       Applying Padilla and Strickland v. Washington, 466 U.S. 668, 691 (1984), Judge

Conviser concluded that Medina could not show prejudice with respect to trial counsel’s

alleged substandard advice because Medina admitted in an affidavit in support of his

post-conviction petition that he personally was fully aware of the immigration

consequences of a guilty plea. See New York v. Medina, No. 07044-99, at 4 (N.Y. Sup.

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 one 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., 528 F.3d 196 (3d Cir. 2008), we considered the issue of whether

the pendency of post-conviction motions or other forms of collateral attack negates the

finality of a conviction for immigration removal purposes. We concluded that “such

pendency does not vitiate finality, unless and until the convictions are overturned as a



                                            7
result of the collateral motions.” Id. at 198-99. Paredes applies here. Medina’s state

court conviction has not been overturned and it thus provides a basis for his removal.

       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 counsel’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, because 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., 330 F.3d 600 (3d Cir. 2003).3

       Last, the 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 considered. 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 of his brief by the absence of that transcript.

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.
                                              8
For the foregoing reasons, we will deny the petition for review.




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