                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 14-4246
                                       ___________

                             JOSEPH MEDINA BAUTISTA,
                                              Petitioner

                                             v.

              ATTORNEY GENERAL UNITED STATES OF AMERICA,
                                               Respondent

                       ____________________________________

                      On Petition for Review of an Order of the
                            Board of Immigration Appeals
                             (Agency No. A043-097-337)
                Immigration Judge: Honorable Margaret R. Reichenberg
                     ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 22, 2015

          Before: FISHER, KRAUSE and VAN ANTWERPEN, Circuit Judges

                             (Opinion filed: April 24, 2015 )
                                     ___________

                                        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.
        Joseph Medina Bautista petitions for review of a final order of removal. For the

following reasons, we will deny the petition.

        Bautista, a native and citizen of the Philippines, entered the United States in 1991

as a conditional resident and became a lawful permanent resident in 1994. In 2010, he

pleaded guilty to distributing, dispensing, or possessing with intent to distribute more

than one ounce of methamphetamine, in violation of N.J. Stat. Ann. § 2C: 35-5(a)(1) and

(b)(8), and distributing, dispensing, or possessing with intent to distribute

methamphetamine within 1,000 feet of school property, in violation of N.J. Stat. Ann.

§ 2C: 35-7. Administrative Record (“A.R.”) at 208.1 He was sentenced to five years of

probation. In 2014, the Government started removal proceedings on aggravated felony

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

        Bautista appeared pro se and contested removability, arguing that he had been

wrongfully convicted. The Immigration Judge (“IJ”) determined that his convictions

qualified as controlled substance offenses and aggravated felonies and that Medina was

removable as charged. The IJ also determined that Bautista was not eligible for any form

of relief from removal. His aggravated felony conviction rendered him statutorily

ineligible for cancellation of removal and voluntary departure, see 8 U.S.C.

§§ 1229b(a)(3), 1229c(a)(1); he could not claim derivative citizenship through his mother


    1
     There was a discrepancy in the state court documents regarding one of the
convictions, i.e., the judgment of conviction listed the offense as involving less than an
ounce of heroin or cocaine, rather than more than an ounce of methamphetamine. The
                                              2
because he was an adult when she became a naturalized citizen; and he presented no case

for asylum or related relief because he testified that he had not been persecuted or

tortured in the Philippines and did not fear such harm upon return. Finally, the IJ denied

Bautista’s request for a continuance to allow for the adjudication in state court of his

pending petition for post-conviction relief because the matter was collateral to the

immigration proceedings and its outcome was speculative.

       On appeal, the BIA upheld the IJ’s decision and addressed an additional issue:

whether the IJ should have allowed expert testimony that Bautista possessed only a

“personal use” amount of drugs, making him eligible for a waiver of inadmissibility

under 8 U.S.C. § 1182(h). The BIA noted that this argument was unfounded because the

waiver is available only in cases involving a “single offense of simple possession of 30

grams or less of marijuana,” id., whereas Medina was convicted of possession with intent

to distribute more than an ounce of methamphetamine. The BIA dismissed the appeal,

and this petition for review followed.

       Although we generally lack jurisdiction to review final orders of removal issued

against aliens who, like Bautista, are removable for having been convicted of certain

controlled substance offenses or an aggravated felony, see 8 U.S.C. § 1252(a)(2)(C), we

retain jurisdiction to review constitutional claims and questions of law. See 8 U.S.C.




judgment was later amended and submitted to the immigration court.
                                          3
§ 1252(a)(2)(D). In his informal brief, which is quite spare, Bautista appears to raise the

following issues: (1) that the IJ should have made him aware of the option for a hearing

pursuant to In re Joseph, 22 I. & N. Dec. 799 (BIA 1999); (2) that his judgment of

conviction is unclear; and (3) that he was deprived of his due process rights. To the

extent that the first issue may be construed to involve a question of law, we lack

jurisdiction to review it because it was not raised before the BIA and is thus not

exhausted. See Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003). As for

the third issue, Bautista does not explain in his brief how his due process rights were

violated. To the extent he intended to raise the IJ’s denial of a continuance, that decision

is discretionary and thus outside the bounds of our jurisdiction as delineated in 8 U.S.C.

§ 1252(a)(2)(D). See Rachak v. Att’y Gen., 734 F.3d 214, 216-17 (3d Cir. 2013).2

        Turning to the remaining issue in the informal brief, Bautista states that “the

conviction they are using to sentence me is not clear[;] the judgment of conviction does

not indicate what my final conviction is.” Pet’r’s Br. at 1. The Government construes

this as merely questioning whether the state court records clearly show what offenses he

was convicted of, which is a factual matter. Resp’t’s Br. at 18. Thus, the Government

argues that Bautista has waived the issue of whether his convictions constitute aggravated

felonies because he failed to identify or argue it in his opening brief. Id. at 17. Although


    2
      We also note that the pendency of Bautista’s collateral challenge did not affect the
finality of his convictions for immigration purposes. See Orabi v. Att’y Gen., 738 F.3d
535, 542 (3d Cir. 2014); Paredes v. Att’y Gen., 528 F.3d 196, 198-99 (3d Cir. 2008).
                                             4
it is “well settled that an appellant’s failure to identify or argue an issue in his opening

brief constitutes waiver of that issue on appeal,” United States v. Pelullo, 399 F.3d 197,

222 (3d Cir. 2002), we note that the document construed as Bautista’s petition for review

was captioned as, and included, a brief in support of his petition. That brief, which is

much more developed than the informal brief, contains an argument challenging whether

the conviction for distributing, dispensing, or possessing with intent to distribute more

than one ounce of methamphetamine constitutes an aggravated felony. Affording

Bautista the liberal construction due pro se pleadings, see Higgs v. Att’y Gen., 655 F.3d

333, 339-40 (3d Cir. 2011), we do not consider him to have waived this issue by failing

to include it in his informal brief because it was presented in his petition for review.

       Bautista’s argument appears to be that his conviction is not an aggravated felony

because it is akin to a simple possession offense. That argument is neither factually nor

legally viable in this case. Bautista was convicted of violating (1) N.J. Stat. Ann.

§ 2C: 35-5(a)(1), which makes it unlawful to “manufacture, distribute or dispense, or to

possess or have under his control with intent to manufacture, distribute or dispense, a

controlled dangerous substance,” and (2) § 2C:35-5(b)(8), which specifies that a violation

of section 5(a)(1) involving more than five ounces of methamphetamine is a crime of the

first degree. A state offense constitutes an aggravated felony for immigration purposes

only if it proscribes conduct punishable as a felony under the Controlled Substances Act




                                               5
(i.e., imprisonment of more than a year). See Moncrieffe v. Holder, 133 S. Ct. 1678,

1683 (2013). The statute Bautista was convicted under “proscribes the identical conduct”

as 21 U.S.C. § 841(a)(1), which makes it unlawful “to manufacture, distribute, or

dispense, or possess with intent to manufacture, distribute, or dispense, a controlled

substance.” Wilson v. Ashcroft, 350 F.3d 377, 381 (3d Cir. 2003). Although the general

New Jersey statute is not categorically an aggravated felony because it also includes

possession with intent to distribute marijuana, and distribution of a “small amount” of

marijuana for no remuneration is only a federal misdemeanor, see 21 U.S.C. § 841(b)(4),

that exception is not at issue here. Bautista was convicted of the subsection of the New

Jersey statute dealing with methamphetamine, not marijuana. Methamphetamine is a

controlled substance, see 21 U.S.C. § 812, the distribution of which is punishable by a

term of imprisonment of more than a year. See 21 U.S.C. § 841(b)(1). Thus, Bautista’s

conviction constitutes an aggravated felony.3

        For these reasons, we will deny the petition.




    3
      Bautista also raised in his petition for review the issues of his eligibility for
cancellation of removal and a waiver of inadmissibility under 8 U.S.C. § 1182(h). He is
statutorily ineligible for both, as explained earlier in this opinion and the BIA’s decision.
                                                6
