                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-2311


ALEX ALBERTO ACOSTA,

                Petitioner,

          v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.



On Petition for Review of an Order of the Board of Immigration
Appeals.


Submitted:   April 18, 2011                 Decided:   April 29, 2011


Before WILKINSON, MOTZ, and DAVIS, Circuit Judges.


Petition dismissed by unpublished per curiam opinion.


Mark A. Mancini, WASSERMAN, MANCINI AND CHANG, P.C., Washington,
D.C., for Petitioner.    Tony West, Assistant Attorney General,
Linda S. Wernery, Assistant Director, Kerry A. Monaco, Office of
Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Alex Alberto Acosta, a native and citizen of Honduras,

petitions for review of an order of the Board of Immigration

Appeals    (“Board”)       dismissing         his    appeal         from   the    immigration

judge’s    decision       ordering      him     removed        to    Honduras.         For    the

reasons discussed below, we dismiss the petition for review.

              Pursuant to 8 U.S.C. § 1252(a)(2)(C) (2006), we lack

jurisdiction, except as provided in 8 U.S.C. § 1252(a)(2)(D)

(2006), to review the final order of removal of an alien who is

removable      for     having        been    convicted         of     certain     enumerated

crimes, including a crime of moral turpitude.                                Because Acosta

conceded before the immigration court that he is an alien who

was found removable for having been convicted of a crime of

moral turpitude, a concession which he does not challenge on

appeal,      our   review       is    limited       to   “constitutional           claims     or

questions     of     law.”       8    U.S.C.       § 1252(a)(2)(C),           (D);     Mbea    v.

Gonzales, 482 F.3d 276, 278 n.1 (4th Cir. 2007).

              In his brief before the court, Acosta first contends

that   the    immigration        judge      abused       his    discretion        in   denying

Acosta’s      motion      for    a    continuance.              Because      Acosta      merely

challenges the immigration judge’s factual determination that he

was not entitled to a continuance, we conclude that his argument

does not fall under the exception set forth in § 1252(a)(2)(D).

See    Ogunfuye      v.   Holder,      610     F.3d      303,       307    (5th   Cir.    2010)

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(“Ogunfuye’s argument that the [immigration judge] abused its

discretion by not granting her a continuance does not present a

constitutional     claim       or    issue       of   law       that   this     court       has

jurisdiction to consider.”).

           Acosta also argues that the Supreme Court’s decision

in Padilla v. Kentucky, 130 S. Ct. 1473, 1486 (2010), holding

that “counsel must inform her client whether his plea carries a

risk of deportation,” may be applied retroactively to his case

and contends that he is entitled to post-conviction relief in

state   court.     Although         Acosta       raises     a   question       of    law,    we

conclude that it is not a colorable question of law as the

argument is not relevant to Acosta’s petition for review.                                   See

Barco-Sandoval v. Gonzales, 516 F.3d 35, 40-41 (2d Cir. 2008)

(finding   that        a    criminal     alien        must        raise    a        colorable

constitutional claim or question of law in order for a federal

appellate court to have jurisdiction under § 1252(a)(2)(D)).

           The Board’s decision clearly indicates that it denied

Acosta’s request for a continuance on the ground that Acosta’s

conviction was final for immigration purposes, notwithstanding

the fact that his motion for post-conviction relief remained

pending in state court.              See Paredes v. Att’y Gen., 528 F.3d

196, 198-99 (3d Cir. 2008) (collecting cases and holding that

the   pendency    of       post-conviction         motions        or   other        forms   of

collateral attack “does not vitiate finality, unless and until

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the convictions are overturned as a result of the collateral

motions”).    Neither the Board nor the immigration judge based

their decisions on the likelihood of Acosta’s success in state

court.    Accordingly, the retroactivity of Padilla v. Kentucky is

simply not at issue in this appeal.

           Because    Acosta   has   failed      to   raise    a    colorable

constitutional   claim   or    question   of   law,   we   find     ourselves

without   jurisdiction    to   consider    his    claims      and   therefore

dismiss the petition for review.         We dispense with oral argument

because the facts and legal contentions are adequately presented

in the materials before the court and argument would not aid the

decisional process.

                                                       PETITION DISMISSED




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