                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 13-2137
                                     ___________

                               SAMUEL ORIN MCKOY,
                                              Petitioner
                                       v.

             ATTORNEY GENERAL UNITED STATES OF AMERICA,
                                                       Respondent
                  ____________________________________

                      On Petition for Review of an Order of the
                            Board of Immigration Appeals
                             (Agency No. A036-357-132)
                Immigration Judge: Honorable Margaret R. Reichenberg
                     ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  December 24, 2013

      Before: FUENTES, GREENBERG and VAN ANTWERPEN, Circuit Judges

                           (Opinion filed: January 16, 2014 )
                                      _________

                                       OPINION
                                       _________

PER CURIAM

      Samuel Orin McKoy petitions for review of the Board of Immigration Appeals’

(“BIA”) final order of removal. We will dismiss the petition.

                                            1
                                             I.

       McKoy is a citizen of Guyana who was admitted to the United States as a lawful

permanent resident in 1977. In 2000, he pleaded guilty to theft by unlawful taking in

violation of N.J. Stat. Ann. § 2C:20-3. The trial court initially sentenced him to probation

but, after McKoy violated his probation twice, the court resentenced him on his

conviction to three years of imprisonment. Thereafter, the Government charged him as

removable for having been convicted of an aggravated felony—i.e., a “theft offense” for

which he was sentenced to at least one year in prison. See 8 U.S.C. §§ 1101(a)(43)(G),

1227(a)(2)(A)(iii).

       McKoy, proceeding pro se, contested the charge. Over a period of two years, the

Immigration Judge (“IJ”) continued his hearing three times, terminated the proceeding

without prejudice when McKoy appealed his sentence, reinstated the proceeding after his

sentence was affirmed, then continued the proceeding eleven more times to give him

opportunities to find counsel, obtain evidence, apply for all potentially available forms of

immigration relief, and seek collateral relief from his conviction in a counseled Post

Conviction Relief (“PCR”) proceeding. McKoy ultimately applied for asylum,

withholding of removal, and relief under the Convention Against Torture (“CAT”).

McKoy claims to fear persecution and torture in Guyana on account of his father’s and

other family members’ political activities in the 1970s and 1980s. He also claims that,

when he was a child in Guyana, other children beat him on account of those activities.

                                             2
       The IJ found McKoy credible but denied relief and ordered his removal. The IJ

concluded that McKoy’s conviction was for a theft-offense aggravated felony, which

renders him ineligible for asylum, see 8 U.S.C. § 1158(b)(2)(A)(ii) & (B)(i), cancellation

of removal, see 8 U.S.C. § 1229b(a)(3), a waiver of inadmissibility under Section 212(h)

of the Immigration and Nationality Act (which also is unavailable because McKoy was

admitted), see 8 U.S.C. § 1182(h); Hanif v. Att’y Gen., 694 F.3d 479, 487 (3d Cir. 2012),

and voluntary departure, see 8 U.S.C. § 1229c(a)(1). With respect to withholding of

removal and relief under CAT, the IJ concluded that McKoy had not suffered past

persecution and had not shown that he likely will be persecuted or tortured in light, inter

alia, of the passage of time (he left Guyana in 1977, and his father died approximately 20

years ago). McKoy challenged the denial of these claims on appeal, but the BIA agreed

with the IJ and dismissed his appeal on that basis. McKoy petitions for review pro se.

                                               II.

       McKoy does not directly argue that his conviction does not qualify as an

aggravated felony, though his brief does make some references to that issue that we

ordinarily might deem sufficient to raise it in light of his pro se status. (Pet’r’s Br. at 9,

18.) We may not reach the issue in this case, however, because McKoy did not exhaust it

by raising it in any way before the BIA. Both his notice of appeal and his brief before the

BIA challenged only the IJ’s denial of his withholding and CAT claims on the merits

(A.R. 8-15, 31), and his brief referred to his conviction only once by way of background

                                               3
(A.R. at 9). The BIA also did not address the issue sua sponte. Thus, we lack

jurisdiction to review the IJ’s ruling that McKoy has been convicted of an aggravated

felony. See 8 U.S.C. § 1252(d)(1); Lin v. Att’y Gen., 543 F.3d 114, 119-21, 126 (3d Cir.

2008).1

       Because we may not disturb the IJ’s ruling that McKoy has been convicted of an

aggravated felony, our jurisdiction is limited to reviewing colorable constitutional claims

and questions of law. See Rachak v. Att’y Gen., 734 F.3d 214, 216 (3d Cir. 2013) (citing

8 U.S.C. § 1252(a)(2)(C), (D)). McKoy does not argue that the BIA committed any


1
  We have not addressed whether a conviction for “theft by unlawful taking or
disposition” under N.J. Stat. Ann. § 2C:20-3 constitutes a “theft offense” within the
meaning of 8 U.S.C. § 1101(a)(43)(G), but we see no immediate reason to question
whether it does. McKoy’s statute of conviction is materially identical to Section 223.2 of
the Model Penal Code, and the BIA has held that convictions falling under that section of
the Code necessarily fall within the broad, generic term “theft offense” for purposes of §
1101(a)(43)(G). See In re V-Z-S-, 22 I. & N. Dec. 1338, 1345 (BIA 2000); see also
Almeida v. Holder, 588 F.3d 778, 783-85 (2d Cir. 2009) (deferring to V-Z-S-); Ilchuck v.
Att’y Gen., 434 F.3d 618, 622 (3d Cir. 2006) (noting that Congress intended the term
“theft offense” to have a “broad meaning”). McKoy cites without explanation Penuliar v.
Ashcroft, 395 F.3d 1037 (9th Cir. 2005), which held that a California conviction for
unlawful taking of a vehicle did not categorically qualify as a “theft offense” because the
California statute criminalizes aiding and abetting a taking and not merely the taking
itself. The Supreme Court expressly abrogated Penuliar and held that aiding and abetting
a theft falls within the generic definition of “theft offense,” see Gonzales v. Duenas-
Alvarez, 549 U.S. 183, 188-90 (2007), and McKoy’s statute of conviction makes no
reference to aiding and abetting in any event. We also see no reason to question whether
McKoy was sentenced to at least one year of prison as required by § 1101(a)(43)(G)
because, under both federal and New Jersey law, a sentence imposed after a probation
violation generally is considered a modification of the sentence imposed for the
underlying conviction. See, e.g., Lee v. Stickman, 357 F.3d 338, 342 n.3 (3d Cir. 2004);
N.J. Stat. Ann. § 2C:45-3(a)(4)(B); State v. Ryan, 429 A.2d 332, 335 (N.J. 1981). We do
not reach these issues, however, because McKoy did not exhaust them.
                                             4
constitutional violation or error of law, and our review reveals that it applied the proper

substantive standards and standard of review to his claims. McKoy argues that the BIA

erred in rejecting his claims as a matter of fact, but we lack jurisdiction to review those

factual arguments. See Jarbough v. Att’y Gen., 483 F.3d 184, 188-89 (3d Cir. 2007).2

       McKoy also argues that the IJ erred in refusing to stay his proceeding pending the

outcome of his PCR petition. McKoy did not exhaust that argument either and, even if he

had, the IJ’s decision in that regard is a discretionary one that we also lack jurisdiction to

review. See Rachak, 734 F.3d at 217 (holding that “we lack jurisdiction to review the

agency’s denial of a continuance” pending a collateral challenge to a criminal

conviction).3 Finally, McKoy raises a number of arguments directed at his underlying

conviction and his probation violations. These arguments too are unexhausted, and they

are beyond the scope of McKoy’s petition for review in any event.

       For these reasons, we will dismiss the petition for review.



2
 We nevertheless note that, as the Government argues, the BIA’s ruling is supported by
substantial evidence in the record.
3
  Even if we could review this issue, McKoy’s argument lacks merit. The IJ continued
McKoy’s proceeding some fourteen times, and McKoy has raised nothing suggesting that
the IJ abused her discretion in declining to continue it indefinitely. The IJ was not
required to do so in light of McKoy’s PCR proceeding, which has been pending for
almost two years, because “the pendency of a collateral attack on a conviction does not
negate the finality of the conviction for immigration purposes.” Rachack, 734 F.3d at
217 n.2 (citing Paredes v. Att’y Gen., 528 F.3d 196, 198-99 (3d Cir. 2008)). McKoy may
file a motion to reopen with the BIA if he ultimately prevails on his PCR petition, though
we express no opinion on the merits of any such motion.
                                              5
