                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 17-2445
                                       ___________

                        ARNOLD ALBERT AGUILAR-QUISPE,
                                            Petitioner

                                             v.

                           ATTORNEY GENERAL OF THE
                           UNITED STATES OF AMERICA,
                                             Respondent

                       ____________________________________

                       On Petition for Review of an Order of the
                            Board of Immigration Appeals
                              (Agency No. A035-922-271)
                 Immigration Judge: Honorable Kuyomars Q. Golparvar
                     ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  February 16, 2018

            Before: GREENAWAY, JR., BIBAS and ROTH, Circuit Judges

                           (Opinion filed: September 24, 2018)
                                      ___________

                                        OPINION *
                                       ___________

PER CURIAM



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Arnold Albert Aguilar-Quispe petitions for review of the Board of Immigration

Appeals’ (BIA) order dismissing his appeal from an immigration judge’s (IJ) decision

denying Aguilar-Quispe’s motion to terminate removal proceedings and his request for

deferral of removal under the Convention Against Torture (CAT). For the reasons that

follow, we will deny the petition.

       Aguilar-Quispe is a native and citizen of Peru who was admitted to the United

States as a lawful permanent resident in 1977. In 1993, he was convicted on federal

charges of conspiracy to possess with intent to distribute cocaine, possession with intent

to distribute cocaine, and kidnapping, for which he was sentenced to 405 months’

imprisonment. In 2015, the Department of Homeland Security charged Aguilar-Quispe

with removability as an alien convicted of an aggravated felony, 8 U.S.C.

§ 1227(a)(2)(A)(iii), a controlled substance offense, 8 U.S.C. § 1227(a)(2)(B)(i), and two

crimes involving moral turpitude, 8 U.S.C § 1227(a)(2)(A)(ii). Aguilar-Quispe applied

for asylum, withholding of removal, and for relief under the CAT. He also filed a

“Motion to Estop Removal Proceedings,” which was construed as a motion to terminate

proceedings, arguing that his convictions were illegal because his attorney advised him

that he would not be deported as a consequence of his guilty plea, and the Government

affirmatively misled him to believe the same under the terms of the plea agreement.

       The Immigration Judge (“IJ”) found Aguilar-Quispe removable, and denied all

requests for relief. In denying the motion to terminate proceedings, the IJ explained that,

despite a pending motion for post-conviction relief, Aguilar-Quispe’s convictions were
                                             2
final, and the immigration court was bound by those convictions. The IJ noted further

that Aguilar-Quispe was not eligible for relief under Padilla v. Kentucky, 559 U.S. 356

(2010), 1 as it does not apply retroactively to cases on collateral review. See Chaidez v.

United States, 568 U.S. 342, 344 (2013). Finally, the IJ determined that Aguilar-Quispe

was not eligible for discretionary relief under the version of § 212(c) of the Immigration

and Nationality Act, 8 U.S.C. § 1182(c), which was in force at the time he pleaded guilty,

because he had served more than five years in prison. See Lupera-Espinoza v. Att’y

Gen., 716 F.3d 781, 787 (3d Cir. 2013) (holding that provision “plainly bar[red]

discretionary relief to aliens who ha[d] served at least five years’ imprisonment for one or

more ‘aggravated felonies.’”) (citation omitted).

       On appeal, Aguilar-Quispe challenged the denial of his motion to terminate the

proceedings. He also filed a motion to remand, arguing that the record on appeal was

incomplete because the IJ did not articulate a factual basis for denying the motion. The

Board affirmed the IJ’s ruling, noting that Aguilar-Quispe’s convictions were final, and

that he was precluded from attacking them in an immigration proceeding.

       Aguilar-Quispe also argued that the IJ denied his due process rights by preventing

him from presenting evidence in support of his request for deferral of removal. The

Board rejected this claim, finding no prejudice because the only evidence Aguilar-Quispe




1
  In Padilla, the Supreme Court held that the Sixth Amendment requires defense counsel
to advise their clients whether a guilty plea carries a risk of deportation. 559 U.S. at 374.
                                               3
indicated he wanted to provide was in support of his allegations that the IJ accepted as

true. This petition for review ensued.

       Although we have jurisdiction to review final orders of removal, see 8 U.S.C. §

1252, we generally lack jurisdiction over final BIA decisions “ordering removal based on

the commission of an aggravated felony or a controlled substance offense.” Leslie v.

Att’y Gen., 611 F.3d 171, 174 (3d Cir. 2010). In such cases, our jurisdiction is limited to

reviewing colorable constitutional claims and questions of law. Pareja v. Att’y Gen., 615

F.3d 180, 186 (3d Cir. 2010). “To determine whether a claim is colorable, we ask

whether ‘it is immaterial and made solely for the purpose of obtaining jurisdiction or is

wholly insubstantial and frivolous.’” Id. (citation omitted).

       Aguilar-Quispe’s sole issue for review is that the IJ and BIA failed to consider his

argument that the Government should be estopped from seeking his deportation on the

basis of his convictions because it affirmatively misled him to believe that there were no

deportation consequences to his plea. He raised this issue both in his motion to terminate

the proceedings and in his motion to remand. We disagree with the Government that we

lack jurisdiction to review this claim. The failure to afford an alien “an individualized

determination of his [or her] interests” amounts to a denial of due process. Abdulai v.

Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001) (citation omitted); cf. Jarbough v. Att’y Gen.,

483 F.3d 184, 189 (3d Cir. 2007) (“arguments such as that an Immigration Judge or the

BIA incorrectly weighed evidence, failed to consider evidence or improperly weighed


                                             4
equitable factors are not questions of law”). And a claim need not be ultimately

meritorious to be deemed colorable. Pareja, 615 F.3d at 187.

       In support of his petition, Aguilar-Quispe notes, correctly, that we have recognized

the “proof of affirmative misconduct on the part of the Government” during the

immigration process may give rise to an estoppel claim. See Yang v. INS, 574 F.2d 171,

175 (3d Cir. 1978). However, the alleged Government misconduct at issue in his motion

occurred during the course of his criminal proceedings. In essence, his estoppel claim is

one of prosecutorial misconduct during the plea process. 2 As the IJ noted in his oral

decision when denying the motion to terminate proceedings, Aguilar-Quispe’s attacks on

the validity of his plea – and thus the validity of his conviction – were “outside the

jurisdiction of [the immigration] court,” and were solely in the province of the criminal

court. 3 A.R. at 140. In affirming the denial of the motion, the Board noted that Aguilar-

Quispe “cannot collaterally attack the legitimacy of his criminal convictions in

immigration proceedings.” 4 A.R. at 2. Thus, although the Agency did not discuss


2
  This argument is distinguishable from his alternative estoppel argument – that his
counsel’s ineffectiveness resulted in an invalid conviction. To the extent that Aguilar-
Quispe seeks to raise a claim with respect to the denial of his motion on this alternative
basis, we deem it waived. Harvey v. Plains Twp. Police Dep’t, 421 F.3d 185, 192 (3d
Cir. 2005) (noting that arguments not raised in an opening brief are waived).
3
  On the same day as the oral decision, the IJ also stated on the record, just prior to
Aguilar-Quispe’s testimony, that the motion to terminate proceedings was denied after
noting that post-conviction proceedings were pending, and that, therefore, the convictions
remained final. A.R. at 192-95.
4
  Implicit in this decision is the denial of the motion to remand; the BIA’s failure to
explicitly state that the motion was denied did not deprive Aguilar-Quispe of the ability
to present his case, nor was he prejudiced thereby. See Yuan v. Att’y Gen., 642 F.3d
                                                5
specifically the allegation of prosecutorial misconduct, it adequately explained its

reasoning for denying the estoppel argument. Accordingly, Aguilar-Quispe was afforded

adequate process as a matter of law.

       Based on the foregoing, we will deny the petition for review. The motion to file

the reply brief out of time is granted.




420, 427 (3d Cir. 2011) (explaining that an error in an immigration case is harmless
“when it is highly probable that the error did not affect the outcome of the case”).
                                              6
