                                                                 FILED
                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS         Tenth Circuit

                                   TENTH CIRCUIT                         December 19, 2014

                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
 JUAN CASTILLO-HERNANDEZ,

        Petitioner,

 v.                                                          No. 14-9504
                                                         (Petition for Review)
 ERIC H. HOLDER, JR., United States
 Attorney General

        Respondent.


                               ORDER AND JUDGMENT*


Before HOLMES, MATHESON, and McHUGH, Circuit Judges.


       Mr. Castillo petitions for review of a Board of Immigration Appeals (“BIA”)

order. We lack jurisdiction under Article III of the Constitution or 8 U.S.C.

§ 1252(a)(2)(C).

                                   I. BACKGROUND

       Mr. Castillo is a Mexican citizen who entered the United States without inspection

no later than 1997. In July 2012, he married United States citizen Ms. Marisol Torres.

Their four children are United States citizens.



       * This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
       Mr. Castillo’s criminal history includes convictions for the following Colorado

state crimes:

   •   Theft of more than $100 but less than $500 in violation of Colo. Rev. Stat. § 18-4-
       401(1)(d), a class 2 misdemeanor (sentenced on April 28, 1998);
   •   First Degree Criminal Trespass in violation of Colo. Rev. Stat. § 18-4-502, a class
       5 felony (sentenced on February 18, 2000);
   •   Third Degree Sexual Assault in violation of Colo. Rev. Stat. § 18-3-404, a class 1
       misdemeanor (sentenced on August 21, 2002).

In 2013, Mr. Castillo was convicted of driving under the influence, which prompted

immigration authorities to arrest and detain him due to his criminal history.

       The Department of Homeland Security served a Notice to Appear (“NTA”) on Mr.

Castillo. It alleged he was removable under the Immigration and Nationality Act

(“INA”) for (1) being present in the United States without inspection or permission in

violation of 8 U.S.C. § 1182(a)(6)(A)(i), and (2) being a noncitizen who committed a

crime involving moral turpitude (“CIMT”) in violation of § 1182(a)(2)(A)(i)(I). The

NTA listed Mr. Castillo’s convictions for theft, criminal trespass, and sexual assault as

CIMTs.

       On July 9, 2013, Mr. Castillo appeared with counsel at his immigration hearing.

He admitted all allegations in the NTA and conceded both removability charges. His

counsel requested a continuance to pursue state post-conviction proceedings challenging

Mr. Castillo’s felony criminal trespass and misdemeanor sex assault convictions. He

asserted that but for those two convictions, Mr. Castillo “would be cancellation eligible”




                                            -2-
under the ten-year cancellation of removal defense. Hr’g Tr. of Jul. 9, 2013, ROA at

160.1

        The Immigration Judge (“IJ”) orally denied the motion to continue and issued a

written decision ordering Mr. Castillo be removed to Mexico because he entered the

country without inspection or permission and because he had been convicted of a CIMT.

        Mr. Castillo appealed to the BIA. He argued the IJ’s denial of his motion to

continue violated his “due process right to file a 35(c) motion pursuant to the Colorado

Rules of Criminal Procedure.” Aplt. BIA Br., ROA at 22. He further argued the

continuance denial and his removal would violate his rights to due process, confrontation,

effective assistance of counsel, state post-conviction procedures, and equal protection.2


        1
         The ten-year cancellation of removal defense requires, among other things, the
petitioner have no CIMT offenses in his or her criminal history. 8 U.S.C.
§ 1229b(b)(1)(C). Although Mr. Castillo has challenged only two of his three
convictions in Colorado state court, his third conviction for class 2 misdemeanor theft
might not bar cancellation if he qualifies for the petty offense exception. See 8 U.S.C.
§ 1182(a)(2)(A)(ii)(II) (explaining that a conviction shall not be considered a CIMT if
“an alien . . . committed only one crime” for which “the maximum penalty possible . . .
did not exceed imprisonment for one year and . . . the alien was not sentenced to a term of
imprisonment in excess of 6 months”).
        2
         A noncitizen challenging a removal order must generally exhaust “all
administrative remedies available to the alien as of right,” 8 U.S.C. § 1252(d)(1),
including presenting “the same specific legal theory to the BIA before he or she may
advance it in court,” Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237 (10th Cir. 2010).
However, because “§ 1252(d)(1) requires exhaustion only of ‘remedies available to the
alien as of right’” we do not require the “exhaustion of constitutional challenges to the
immigration laws, because the BIA has no jurisdiction to review such claims.” Vicente-
Elias v. Mukasey, 532 F.3d 1086, 1094 (10th Cir. 2008) (quotations omitted).
       As noted below, Mr. Castillo challenges the INA’s definition of conviction in 8
                                                                              Continued . . .
                                            -3-
       On December 23, 2013, the BIA dismissed the appeal, noting Mr. Castillo

admitted the charges supporting removability and reasoning “[t]he fact that the

respondent is pursuing post-conviction relief in the form of a collateral attack on

convictions in criminal court does not affect its finality for federal immigration purposes,

or warrant the grant of a motion to continue.” BIA Order, ROA at 4.

       Mr. Castillo was removed to Mexico on January 28, 2014.

                                       II. DISCUSSION

       Mr. Castillo has not shown we have jurisdiction under Article III of the

Constitution or the INA to review the denial of his request for a continuance. Green v.

Napolitano, 627 F.3d 1341, 1344 (10th Cir. 2010) (“The party invoking a court’s

jurisdiction bears the burden of establishing it.”).

       We discuss (A) the contours of our jurisdiction, (B) Mr. Castillo’s alleged injury,

and (C) why we lack jurisdiction under Article III or the INA.

                            A. Legal Background on Jurisdiction

1. Article III Standing

       Under Article III, Mr. Castillo must establish standing by demonstrating “(1) that

he . . . has ‘suffered an injury in fact;’ (2) that the injury is ‘fairly traceable to the

challenged action of the defendant;’ and, (3) that it is ‘likely’ that ‘the injury will be


U.S.C. § 1101(a)(48)(A). We consider whether that argument is colorable, even though
he did not raise this constitutional challenge to the statute before the BIA, under the
exception noted by Vicente-Elias.


                                                -4-
redressed by a favorable decision.’” Awad v. Ziriax, 670 F.3d 1111, 1120 (10th Cir.

2012) (quoting Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436, 1442 (2011)).

       Redressability requires the party seeking relief to show “it is likely, as opposed to

merely speculative, that the injury will be redressed by a favorable decision.” Friends of

the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000); see Duke

Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 75 n.20 (1978) (requiring

“substantial likelihood . . . the relief requested will redress the injury claimed”

(quotations omitted)). “This requirement assures that there is a real need to exercise the

power of judicial review in order to protect the interests of the complaining party.”

Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009) (quotations omitted).

2. Immigration and Nationality Act

       Under the INA, we generally lack “jurisdiction to review any final order of

removal against an alien who is removable by reason of having committed a criminal

offense covered in section 1182(a)(2).” 8 U.S.C. § 1252(a)(2)(C); see 8 U.S.C.

§ 1182(a)(2)(A)(i)(I) (authorizing the removal of a noncitizen having a CIMT). But

“[n]othing in . . . [§ 1252(a)(2)](C) . . . shall be construed as precluding review of

constitutional claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D). We therefore have

jurisdiction to review Mr. Castillo’s CIMT-based removal only if he raises colorable

“constitutional or legal challenges to the order.” Waugh v. Holder, 642 F.3d 1279, 1281

(10th Cir. 2011).



                                              -5-
                                     B. Alleged Injury

       Mr. Castillo asserts that, had the IJ granted his continuance, his physical presence

would have enabled him to participate fully in the collateral attacks on his convictions,

thereby increasing the prospect of post-conviction relief, which in turn would improve his

chances for cancellation of his removal. He asks us to reverse the denial of his

continuance and order his return to the United States.

       Mr. Castillo does not clearly explain his alleged injury. We discern two

possibilities. First, Mr. Castillo’s reply brief identified “deportation to Mexico” as his

“injury.” Aplt. Reply Br. at 2; see also id. (“[Mr.] Castillo has an injury in fact because

he was ordered removed and he was physically removed to Mexico.”). And at oral

argument, his counsel reiterated that Mr. Castillo’s “removal . . . is the standing injury.”

Oral Arg. 11:05-11:18. Second, Mr. Castillo also seems to argue his injury is his

inability to participate in person in his state post-conviction proceedings. See Aplt. Br. at

14, 19-21.

       Neither injury invokes our jurisdiction because (1) our ability to redress the

alleged removal injury is no more than speculative, and (2) Mr. Castillo has not raised a

colorable constitutional or legal argument indicating he has a right to be physically

present in the United States during his state post-conviction process.




                                             -6-
                                     C. No Jurisdiction

1. No Article III Standing Redressability

       To the extent Mr. Castillo’s alleged injury is his removal, his appeal is

nonjusticiable because he cannot meet the redressability requirement for standing under

Article III of the Constitution.

       First, Mr. Castillo has not shown how granting him a continuance and returning

him to the United States—the remedy he seeks here—will make success in his post-

conviction challenges more likely and enable him to seek cancellation of removal. To

cancel his removal, Mr. Castillo must succeed in his two collateral challenges and

convince the IJ his remaining conviction does not bar a request for cancellation. This

“prospect . . . can, at best, be termed only speculative.” Linda R.S. v. Richard D., 410

U.S. 614, 618 (1972). And it is purely conjectural whether his physical presence at his

post-conviction proceedings would make any difference. See Warth v. Seldin, 422 U.S.

490, 507-08 (1975) (“[P]etitioners rely on little more than the remote possibility,

unsubstantiated by allegations of fact, that their situation might have been better had

respondents acted otherwise, and might improve were the court to afford relief. . . . [A]

plaintiff . . . must allege specific, concrete facts demonstrating . . . that he personally

would benefit in a tangible way from the court’s intervention.”).

       Second, the likelihood that a favorable decision from this court would redress Mr.

Castillo’s removal injury is especially dubious given the barriers to his post-conviction

relief. Mr. Castillo has not proffered evidence, legal argument, or even allegations
                                               -7-
indicating how his state collateral attacks—brought more than ten years after his most

recent conviction—can overcome Colorado’s three-year and 18-month statute of

limitations for post-conviction challenges to felonies (other than class 1) and

misdemeanors, respectively. See Colo. Rev. Stat. § 16-5-402(1).

       Finally, Mr. Castillo’s ability to seek cancellation of removal depends on decisions

of third-parties—in this instance, the Colorado courts—acting independently of these

proceedings. It is “speculative whether the desired exercise of the court’s remedial

powers”—here, granting Mr. Castillo’s requests for continuance and parole—“would

result in” vacating his convictions and ultimately in the cancellation of his removal.

Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 43 (1976); see Baca v. King, 92 F.3d

1031, 1037 (10th Cir. 1996) (concluding plaintiff lacked standing because adequate

redress was contingent on the decision of a third party).

       For these reasons, Mr. Castillo has not shown how this court can redress his

alleged removal injury. He therefore lacks standing.

2. No INA Jurisdiction

       To the extent Mr. Castillo’s injury is his absence from his state post-conviction

proceedings, we question (a) whether his claim survives the finality of his state trial

judgments of guilt; but even if it does, we conclude (b) Mr. Castillo has not advanced a

colorable constitutional or legal argument to invoke our jurisdiction under the INA.




                                             -8-
       a. Tenth Circuit cases on finality of convictions for removal

       We have held that

       an alien is lawfully deportable as soon as a formal judgment of guilt is
       entered by a trial court. Thus, while the alien may have the right to pursue
       appellate or collateral relief for [the conviction on which removal is based],
       the government need not wait until all these avenues are exhausted before
       deporting him.

Waugh, 642 F.3d at 1284 (quoting United States v. Adame-Orozco, 607 F.3d 647, 653

(10th Cir. 2010)).

       Indeed, in Waugh, the petitioner asked the IJ and the BIA, similarly to Mr. Castillo

here, to continue his removal proceeding until his motion to withdraw his guilty plea to

the removable offense was resolved in state court. 642 F.3d at 1280-81. When the

petitioner challenged the IJ’s and BIA’s rejection of that request, arguing denial of due

process, we identified his “true objection” as complaining about the discretionary denial

of his wish for a continuance, which “raises neither a constitutional nor a legal issue, so

we are without jurisdiction to review it.” Id. at 1284-85 (citing 8 U.S.C. § 1252(a)(2)).

       In the face of this precedent, Mr. Castillo attempts a potpourri of constitutional or

legal arguments to avoid § 1252(a)(2)(C)’s jurisdictional limit on review of removal

orders—in this case review of the denial of his motion for continuance. Adame-Orozco

and Waugh may be sufficient to dispose of these arguments. But because the case law on

the scope of § 1252(a)(2)(D) is not clear, we will briefly explain why not one of Mr.

Castillo’s arguments is colorable.



                                             -9-
       b. No colorable constitutional or legal claims

       As noted previously, we lack authority to review removal orders based on CIMT-

status unless the petitioner raises colorable constitutional or legal challenges. See 8

U.S.C. § 1252(a)(2)(C) & (D); Alzainati v. Holder, 568 F.3d 844, 850-51 (10th Cir.

2009). To be colorable, “the alleged violation need not be ‘substantial,’ but the claim

must have some possible validity.” Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir.

2001) (citations omitted). The “talismanic” use of “the terms conventionally used in

describing constitutional claims and questions of law will not overcome Congress’s

decision to deny jurisdiction” under § 1252(a)(2)(C). Carcamo v. U.S. Dep’t of Justice,

498 F.3d 94, 98 (2d Cir. 2007) (quotations omitted). Indeed, “[m]ere reference to a legal

standard or a constitutional provision . . . does not convert a discretionary decision into a

reviewable legal or constitutional question.” Moral-Salazar v. Holder, 708 F.3d 957, 962

(7th Cir. 2013). The discretionary decision here was the denial of Mr. Castillo’s request

for continuance.

       Mr. Castillo argues his removal prevented his physical presence at his post-

conviction proceedings and thereby violated his rights to substantive and procedural due

process, confrontation, effective assistance of counsel, and state procedural rights. He

also argues the INA’s definition of “conviction” in 8 U.S.C. § 1101(a)(48)(A) allows

immigration courts to rely on convictions that have not been challenged in state post-

conviction proceedings, and this violates his rights to substantive and procedural due



                                             -10-
process, effective assistance of counsel, state procedural rights, the Tenth Amendment,

and equal protection.

                 i. Substantive and Procedural Due Process

       Mr. Castillo claims he cannot “meaningfully participate in his pending post-

conviction appeals,” Aplt. Br. at 16, in violation of his substantive and procedural “due

process rights guaranteed in the United Sates Constitution, specifically the Fifth and

Sixth Amendments,” id. at 9. But he fails to explain how these rights have been violated

or how his physical presence is required to vindicate them. He provides no legal

authority or other support regarding substantive due process. Nor has he shown how

removal has infringed a procedural right in either his immigration or state post-conviction

proceedings.

       His argument is inadequately briefed. See Bronson v. Swensen, 500 F.3d 1099,

1104 (10th Cir. 2007) (“[W]e routinely have declined to consider arguments that are not

raised, or are inadequately presented, in an appellant’s opening brief.”); Perry v.

Woodward, 199 F.3d 1126, 1141 n.13 (10th Cir. 1999) (declining to address an argument

because the defendants “have not adequately developed the argument,” and “[t]his court

. . . will not craft a party’s arguments for him.”). An argument not adequately briefed is

not colorable.

                 ii. Confrontation Clause

       Mr. Castillo contends he must be present at “every stage of the trial,” Aplt. Br. at

17, including “[p]ost-conviction . . . evidentiary hearings to be held by the trial court,”
                                             -11-
id., to protect his rights under the Confrontation Clause, which states “in all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses

against him.” U.S. Const. amend. VI. Other than broadly asserting he must be

“physically present,” Aplt. Br. at 17, Mr. Castillo fails to identify any witness who might

testify against him, a necessary predicate for confrontation protection. More

fundamentally, the Confrontation Clause “does not require that a defendant be present at

all proceedings.” Bland v. Sirmons, 459 F.3d 999, 1020 (10th Cir. 2006). Mr. Castillo

has not cited any authority that extends the Confrontation Clause to Colorado’s post-

conviction setting. Indeed, the First Circuit has concluded “that the Confrontation Clause

does not apply to state post-conviction proceedings.” Oken v. Warden, MSP, 233 F.3d

86, 93 (1st Cir. 2000).

              iii. Effective Assistance of Counsel

       Mr. Castillo argues the denial of a continuance and his removal denied him “a full

and fair opportunity” to pursue state post-conviction claims of ineffective assistance.

Aplt. Br. at 14. But this is just another way of asserting he must be physically present.

Through counsel, he has filed for post-conviction relief in the Colorado courts alleging

ineffective assistance of counsel. Those proceedings are pending at the Colorado Court

of Appeals. The IJ’s denial of a continuance has not prevented him from pursuing

collateral challenges or invoking his constitutional claims there, and nothing in the record

or his arguments indicates he must be physically present to pursue his claim of ineffective

assistance of counsel.
                                            -12-
              iv. Colorado Rule of Criminal Procedure 35

       Mr. Castillo argues the denial of a continuance and immediate removal violated

his right to be present at his post-conviction proceedings under Colorado Rule of

Criminal Procedure 35 (“Rule 35”). Colo. R. Crim. P. 35. But the rule does not establish

a general right to be present. It does afford a post-conviction evidentiary hearing if

certain criteria are met, id. 35(c)(2)(I)-(VII), and even then only if the court cannot

otherwise enter a ruling “based on the pleadings,” id. 35(c)(3)(V).3 Mr. Castillo

interprets this provision as granting him a right to be present. But nothing in the rule

states when or even if a petitioner has a right to attend a post-conviction evidentiary

hearing.

       Mr. Castillo cites to case law that interpreted a prior version of Rule 35 for the

proposition that a trial court must hold an evidentiary hearing “upon receipt of a motion

for postconviction relief under Rule 35(c).” People v. Simpson, 69 P.3d 79, 81 (Colo.

2003) (en banc) (interpreting Colo. R. Crim. P. 35(c)(3) (1999)). He concludes this

mandatory language means “he needs to be physically present to litigate his post-

conviction appeals.” Aplt. Br. at 17. But just because an evidentiary hearing must be

held does not mean, without more, the petitioner has a right to be there.


       3
        Mr. Castillo quotes Rule 35 as saying “‘Upon receipt of a motion for
postconviction relief under Rule 35(c), a trial court must hold an evidentiary hearing . . .’
Crim. P. 35(c)(3).” Aplt. Br. at 17 (citation and alteration in original). That language,
however, appears nowhere in Rule 35.


                                             -13-
       Whether under the old Rule 35(c) or the current one, Mr. Castillo fails to show—

even if the Colorado courts were to hold an evidentiary hearing on his post-conviction

motions—his physical presence is needed or required. We can only speculate whether

Mr. Castillo’s post-conviction motions even qualify for such a hearing, much less one

that would require his physical presence.

              v. Tenth Amendment

       Mr. Castillo argues 8 U.S.C. § 1101(a)(48)(A)’s definition of “conviction”

underlying the denial of his request for a continuance and his immediate removal

interferes with “state criminal procedure” in violation of the Tenth Amendment. Aplt.

Br. at 23.

       Mr. Castillo has not shown how the statute interferes with his state post-conviction

proceedings. He has filed his collateral challenges, and they are being considered. He

has not even raised a colorable claim that his physical presence is needed or required in

these proceedings. Moreover, Mr. Castillo’s invocation of the Tenth Amendment and

Colorado’s police powers over criminal proceedings (including post-conviction

proceedings) makes no attempt to overcome case law recognizing Congress’s authority

under the Immigration Clause of the Constitution to displace or preempt state laws,

including those normally reserved to the states’ police powers. See Lopez v. INS, 758

F.2d 1390, 1392 (10th Cir. 1985) (indicating Congress’s authority over immigration may

sometimes preempt even “the States’ exercise of their police powers” (quotations

omitted)); see also Arizona v. United States, 132 S. Ct. 2492, 2505 (2012) (stating in an
                                            -14-
immigration case “[t]he ordinary principles of preemption include the well-settled

proposition that a state law is preempted where it stands as an obstacle to the

accomplishment and execution of the full purposes and objectives of Congress”

(quotations omitted)).

              vi. Equal Protection

       Mr. Castillo argues the INA’s definition of “conviction” authorizes immigration

courts to begin removal proceedings as soon as a trial court enters a final judgment of

guilt, 8 U.S.C. § 1101(a)(48)(A), and therefore discriminates against noncitizens who

wish to seek post-conviction relief in Colorado.

       Mr. Castillo’s confusing and conclusory argument is not adequately briefed, and

we do not consider it. See Bronson, 500 F.3d at 1104.

       He plainly has not raised a colorable claim. Mr. Castillo “argues that he is being

treated different from similarly situated criminal defendants based upon his alienage,”

Aplt. Reply Br. at 11; see Aplt. Br. at 10-11 (characterizing the issue as “whether

alienage justifies denying non-citizens constitutional protections afforded to citizen-

criminal defendants”). But citizens and noncitizens are not similarly situated for

purposes of equal protection in the context of immigration law. Demore v. Kim, 538 U.S.

510, 521 (2003) (“In the exercise of its broad power over naturalization and immigration,

Congress regularly makes rules that would be unacceptable if applied to citizens”

(quotations omitted)); United States v. Huitron-Guizar, 678 F.3d 1164, 1167 (10th Cir.



                                            -15-
2012) (“Equal protection requires that similarly situated individuals be treated similarly;

aliens, let alone those unlawfully here, are simply not situated like citizens.”).

                vii. Other challenges to 8 U.S.C. § 1101(a)(48)(A)

         In addition to his Tenth Amendment and equal protection challenges to

§ 1101(a)(48)(A), Mr. Castillo also alleges the statute violates substantive and procedural

due process, effective assistance of counsel, and Colorado Rule of Criminal Procedure

35. Those arguments fail to state a colorable claim for the same reasons we discussed

above.

                                        *      *       *

         For the foregoing reasons, Mr. Castillo has not raised colorable constitutional or

legal arguments, and we lack jurisdiction under the INA.

                                     III. CONCLUSION

         We dismiss Mr. Castillo’s petition for lack of jurisdiction under Article III of the

Constitution or 8 U.S.C. § 1252(a)(2)(C). We grant his motion to proceed in forma

pauperis.

                                            ENTERED FOR THE COURT



                                            Scott M. Matheson, Jr.
                                            Circuit Judge




                                              -16-
