                                                        NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                No. 13-3673
                                ___________

                            RICARDO LANDELL,
                                          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. A045-617-540)
             Immigration Judge: Honorable Margaret R. Reichenberg
                  ____________________________________

                Submitted Pursuant to Third Circuit LAR 34.1(a)
                               January 27, 2014

   Before: FUENTES, GREENBERG and VAN ANTWERPEN, Circuit Judges

                           (Filed: January 29, 2014)
                                 ___________

                                 OPINION
                                ___________


PER CURIAM
       Ricardo Landell, proceeding pro se, petitions for review of the Board of

Immigration Appeals’ (“BIA”) decision denying his motion to reopen his removal

proceedings. For the reasons that follow, we will dismiss the petition.



                                             I.

       Landell is a native and citizen of Jamaica who entered the United States as an

immigrant in 1996. Between 2000 and 2009 he amassed four state court convictions (one

in New York and three in New Jersey). In 2012, the Government served him with a

Notice to Appear, charging him with being removable on three different grounds: (1) as

an alien who has been convicted of two or more crimes involving moral turpitude, see

8 U.S.C. § 1227(a)(2)(A)(ii); (2) as an alien who has been convicted of a controlled

substance offense, see 8 U.S.C. § 1227(a)(2)(B)(i); and (3) as an alien who has been

convicted of an “aggravated felony,” see 8 U.S.C. § 1227(a)(2)(A)(iii).

       Landell, through counsel, conceded the first two charges of removability, but

denied being removable as an aggravated felon. He also applied for asylum, withholding

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

hearing on the merits of that application, the Immigration Judge (“IJ”) denied relief and

ordered Landell’s removal to Jamaica. The IJ began her analysis by determining that

Landell’s conviction for criminal sexual contact, in violation of N.J. Stat. § 2C:14-3(b),

constituted an aggravated felony. Next, the IJ explained that this aggravated felony

designation rendered Landell ineligible for asylum. Lastly, the IJ concluded that
                                             2
Landell’s claims for withholding of removal and CAT relief failed on the merits. The

BIA upheld the IJ’s decision on appeal, and Landell’s pro se petition for review that

followed was dismissed in March 2013 for failure to prosecute. See C.A. No. 13-1612.

       In July 2013, Landell, proceeding pro se, moved the BIA to reopen his removal

proceedings. On August 19, 2013, the BIA denied the motion as untimely. The BIA

explained that, to the extent the motion claimed that Landell’s former immigration

attorney had been ineffective, Landell had failed to substantially comply with the

procedural requirements set forth in In re Lozada, 19 I. & N. Dec. 637 (BIA 1988). The

BIA also determined that Landell had not demonstrated that he was prejudiced by that

attorney’s conduct because, contrary to Landell’s contention, Landell would not have

been eligible for a waiver of inadmissibility or cancellation of removal even if he did not

qualify as an aggravated felon. Lastly, the BIA concluded that Landell’s motion to

reopen “does not demonstrate an exceptional situation that would warrant the exercise of

our discretionary authority to reopen his proceedings sua sponte, particularly given his

lengthy criminal history.” (A.R. at 3.)

       Landell now seeks review of the BIA’s August 19, 2013 decision.

                                            II.

       We begin by outlining the scope of our review. First, we lack jurisdiction to

review the BIA’s denial of sua sponte reopening. See Pllumi v. Att’y Gen., 642 F.3d

155, 159-60 (3d Cir. 2011). Second, because Landell is removable for, inter alia, having

been convicted of a controlled substance offense, we may review only colorable
                                             3
constitutional claims and questions of law. See 8 U.S.C. § 1252(a)(2)(C)-(D); Leslie v.

Att’y Gen., 611 F.3d 171, 174 (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.’” Pareja v. Att’y Gen., 615 F.3d

180, 186 (3d Cir. 2010) (quoting Arbaugh v. Y & H Corp., 546 U.S. 500, 513 n.10

(2006)). With these principles in mind, we turn to Landell’s claims.

       Having reviewed Landell’s opening brief and his petition for review (the former

refers the reader to the latter), we conclude that those filings fail to raise a colorable

constitutional claim of question of law. His claim that he does not actually qualify as an

aggravated felon is irrelevant to our review of the BIA’s denial of reopening. Indeed,

neither the BIA’s determination that he had not substantially complied with Lozada nor

its conclusion that he had not demonstrated that he was prejudiced by his former

attorney’s conduct hinged on his aggravated felon status. As for his claim that he, in fact,

complied with all of Lozada’s requirements, this claim effectively challenges the BIA’s

factfinding, which we lack jurisdiction to review. See Sukwanputra v. Gonzales, 434

F.3d 627, 634 (3d Cir. 2006).1 Lastly, his claims that the BIA “fail[ed] to address the

factual issues” in his motion to reopen, failed to “articulat[e] a reason why [his] legal




1
 In presenting this claim, Landell appears to rely on evidence that is not part of the
administrative record and post-dates the BIA’s denial of reopening. As a result, even if
we had jurisdiction to review this claim, we would still not be able to consider that
evidence. See 8 U.S.C. § 1252(b)(4)(A).
                                             4
arguments raised [were] without merit,” and “provided no rational basis” to deny

reopening are wholly undeveloped and belied by the record.

       In light of the above, we will dismiss the petition.2




2
  Landell’s reply brief argues that the BIA’s prejudice determination was error because he
is, in fact, eligible for cancellation of removal. Because Landell did not raise this claim
in his opening brief, this claim is waived. See Skretvedt v. E.I. DuPont de Nemours, 372
F.3d 193, 202-03 (3d Cir. 2004). Even if this claim were not waived, it would still not
entitle him to relief because the BIA articulated an alternative basis for denying
reopening (his failure to comply with Lozada).
                                               5
