                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 11-3727
                                      ___________

                             WAYNE ANTHONY COLEY,
                                             Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                              Respondent
                    ____________________________________

                      On Petition for Review of an Order of the
                            Board of Immigration Appeals
                             (Agency No. A077-024-526)
                Immigration Judge: Honorable Margaret R. Reichenberg
                     ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    June 22, 2012

   Before: SCIRICA, GREENAWAY, JR. and VAN ANTWERPEN, Circuit Judges

                             (Opinion filed: June 25, 2012)
                                     ___________

                                       OPINION
                                      ___________

PER CURIAM

      Wayne Anthony Coley petitions for review of a final order of removal. For the

following reasons, we will deny the petition for review.

      Coley, a citizen of Jamaica, was admitted into the United States as a lawful
permanent resident in 1998. In May 2010, Coley pleaded guilty in the Superior Court of

New Jersey, Bergen County, to manufacturing, distributing, or dispensing cocaine of a

quantity less than one-half ounce in violation of N.J. Stat. §§ 2C:35-5(a)(1), (b)(3). He

was sentenced to a term of 297 days of imprisonment. Coley applied for post-conviction

relief (“PCR”) based on Padilla v. Kentucky, 130 S. Ct. 1473 (2010), arguing that

counsel did not adequately inform him of the immigration consequences of pleading

guilty. His PCR petition was denied in June 2011.

       Meanwhile, in September 2010, Coley was placed in removal proceedings and

was charged under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien

convicted of an aggravated felony, and INA § 237(a)(2)(B)(i), 8 U.S.C. §

1227(a)(2)(B)(i), as an alien convicted of a controlled substance violation. 1 Coley

admitted that he had been convicted, but denied that he was removable. The Immigration

Judge (“IJ”) granted multiple continuances to allow Coley to pursue post-conviction

relief. After Coley informed the IJ that his application for post-conviction relief had

been denied, the IJ ordered Coley removed from the United States to Jamaica. 2 The IJ

concluded that Coley was removable under INA § 237(a)(2)(A)(iii), 8 U.S.C. §

1227(a)(2)(A)(iii), and INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i), because


       1
        Coley had previously been charged under INA § 237(a)(2)(A)(ii), 8 U.S.C. §
1227(a)(2)(A)(ii), as an alien convicted of two crimes involving moral turpitude, as he
had been convicted of assault and shoplifting. The Government, however, withdrew the
charge.
       2
           The IJ did not offer Coley a continuance while he appealed the denial of his PCR
                                              2
Coley’s conviction qualified as an aggravated felony involving a controlled substance.

Because the IJ determined that Coley was convicted of an aggravated felony, she

concluded that Coley was ineligible for cancellation of removal. 3 See Garcia v. Att’y

Gen., 462 F.3d 287, 291 (3d Cir. 2006) (“An alien who has been convicted of an

aggravated felony is ineligible for most types of relief provided by the INA, such as

cancellation of removal, asylum, and withholding of removal.”). The IJ also determined

that Coley was not eligible for any other forms of relief because he stated that he has

never been persecuted or tortured in Jamaica, and has no fear of being persecuted or

tortured in Jamaica.

       The BIA dismissed Coley’s appeal, concluding that his conviction for distributing

cocaine was an aggravated felony under the Act and that the IJ did not abuse her

discretion by not granting Coley a continuance while his post-conviction appeal was

pending. 4 Coley then filed a pro se petition for review, and the Government has filed a

motion for summary affirmance, which a motions panel referred to this merits panel.

       We have jurisdiction pursuant to INA § 242(a), 8 U.S.C. § 1252(a). Generally, we

lack jurisdiction to review a final order of removal against an alien who is removable by

reason of having committed an aggravated felony, as well as certain controlled substance



petition.
       3
            Coley is married to a United States citizen.
       4
       Coley states that he has an application for post-conviction relief pending in the
Supreme Court of New Jersey.

                                                 3
violations. INA § 242(a)(2)(C), 8 U.S.C § 1252(a)(2)(C). However, we retain

jurisdiction over constitutional claims or questions of law. INA § 242(a)(2)(D), 8 U.S.C

§ 1252(a)(2)(D).

       Coley argues that his conviction was not an aggravated felony because it was an

offense of the third degree under New Jersey law, and he was incarcerated for only 297

days for the conviction. 5 The question of whether a conviction constitutes an aggravated

felony is a legal question that we review de novo. See Jeune v. Att’y Gen., 476 F.3d 199,

201 (3d Cir. 2007). We have adopted two routes to determine whether a state drug

conviction, for immigration purposes, constitutes an aggravated felony. Gerbier v.

Holmes, 280 F.3d 297, 305-06 (3d Cir. 2002). Under the “hypothetical felony route,”

which applies here, a state drug trafficking crime constitutes an aggravated felony for

immigration purposes if the offense is punishable as a felony under the federal Controlled

Substances Act, 21 U.S.C. § 801 et seq. (“CSA”), regardless of how the offense is

characterized by the state. Gerbier, 280 F.3d at 312-13. In determining whether a

conviction is an aggravated felony, we look only to the statutory definition of the offense,

and do not consider the particular facts underlying the conviction. Singh v. Ashcroft, 383



       5
         In his petition for review, Coley argued that his conviction was not a felony
because his offense involved only a small amount of cocaine for no remuneration, citing
Steele v. Blackman, 236 F.3d 130, 137 (3d Cir. 2001). Coley, however, has not
discussed this argument in his brief, and therefore it is waived. See Bradley v. Att'y
Gen., 603 F.3d 235, 243 n.8 (3d Cir. 2010). In any event, this argument fails. In Steele,
this Court concluded that the alien’s offense of distributing a small amount of marijuana
for no remuneration fell under the exception under 21 U.S.C. § 841(b)(4). 236 F.3d at
                                             4
F.3d 144, 147-48 (3d Cir. 2004).

       Coley was convicted of manufacturing, distributing, or dispensing cocaine of a

quantity less than one-half ounce in violation of N.J. Stat. §§ 2C:35-5(a)(1), (b)(3). The

analogous CSA provision to N.J. Stat. §§ 2C:35-5(a)(1), (b)(3) is 21 U.S.C. § 841(a)(1),

(b)(1)(B), which proscribes identical conduct. See Wilson v. Ashcroft, 350 F.3d 377, 381

(3d Cir. 2003). A violation of 21 U.S.C. § 841(a)(1) is punishable by more than one year

of imprisonment under the Act, and is therefore a felony under the CSA. 21 U.S.C. §§

802(44), 841(b)(1)(B). Thus, the BIA properly concluded that Coley’s conviction is an

aggravated felony for immigration purposes. See INA § 101(A)(43)(B), 8 U.S.C. §

1101(a)(43)(B).

       Coley also argues that the BIA erred in affirming the IJ’s decision not to continue

his case while he appealed the denial of his PCR petition, and therefore denied him his

right to due process. We construe this argument as a constitutional claim, see Hoxha v.

Holder, 559 F.3d 157, 163 n.5 (3d Cir. 2009), and conclude that the BIA did not err, see

Singh v. Gonzales, 432 F.3d 533, 541 (3d Cir. 2006) (exercising plenary review over due

process claims). “[D]ue process challenges to deportation proceedings require an initial

showing of substantial prejudice.” See Khan v. Att’y Gen., 448 F.3d 226, 236 (3d Cir.

2006) (quoting Anwar v. Immigration & Naturalization Serv., 116 F.3d 140, 144 (5th Cir.

1997)). Coley has not shown that he has been prejudiced. The validity of Coley’s



137. This exception, however, applies only to marijuana, and Coley’s conviction
involved cocaine. See 21 U.S.C. § 841(b)(4).
                                             5
conviction had not been overturned and the likelihood of success of Coley’s post-

conviction appeal is speculative. Moreover, the pendency of a post-conviction motion

does not negate the finality of a conviction for immigration purposes. See Paredes v.

Att’y Gen., 528 F.3d 196, 198-99 (3d Cir. 2008)

      Accordingly, we will deny the petition for review. The Government’s motion for

summary affirmance is denied as moot.




                                            6
