                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                  December 12, 2011
                     UNITED STATES COURT OF APPEALS
                                                              Elisabeth A. Shumaker
                              FOR THE TENTH CIRCUIT               Clerk of Court



    OMAR GARCIA-TINOCO,

                Petitioner,
                                                        No. 11-9518
    v.                                              (Petition for Review)

    ERIC H. HOLDER, JR., United States
    Attorney General,

                Respondent.


                              ORDER AND JUDGMENT *


Before LUCERO, ANDERSON, and GORSUCH, Circuit Judges.


         Omar Garcia-Tinoco, a native and citizen of Mexico, challenges the Bureau

of Immigration Appeals’ (BIA’s) decision dismissing his appeal of a removal

order. Because we lack jurisdiction, we dismiss Garcia-Tinoco’s petition.




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                          I

      Garcia-Tinoco entered the United States without inspection in 1994. Five

years later, he pleaded guilty in Colorado state court to possession of cocaine. In

2010, the Department of Homeland Security commenced removal proceedings

against him. He appeared before an immigration judge (“IJ”) and conceded that

he was in the country illegally, but contested removal on the basis of his

controlled-substance conviction because he was “in the process of withdrawing

his guilty plea pursuant to a violation of his constitutional rights.” To that end,

Garcia-Tinoco filed a post-conviction petition in state court, arguing that his

guilty plea was the result of ineffective assistance of counsel. He also moved to

continue the removal proceedings until the resolution of his post-conviction

petition. The IJ denied the motion and ordered Garcia-Tinoco removed to

Mexico. The BIA affirmed, stating that the IJ was not required to grant a

continuance because Garcia-Tinoco’s “collateral attack upon his conviction d[id]

not operate to negate its validity.” Garcia-Tinoco now asks us to reverse the

decision of the IJ and hold that he established good cause for a continuance.

                                          II

      We have limited power to review orders removing noncitizens who are

removable because of certain criminal offenses, including Garcia-Tinoco’s

cocaine-possession offense. 8 U.S.C. § 1252(a)(2)(C) (eliminating judicial

review of removal orders “against an alien who is removable by reason of having

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committed a criminal offense covered in section 1182(a)(2)”);

§ 1182(a)(2)(A)(i)(II) (violation of a “law relating to a controlled substance”

renders a noncitizen removable). This court can review such removal orders only

to the extent that they implicate constitutional claims or questions of law.

§ 1252(a)(2)(D). Garcia-Tinoco does not raise any legal or constitutional

challenges; instead, he argues that the IJ abused his discretion by denying the

continuance. We have no jurisdiction to review his claim: Section 1252(a)(2)(C)

clearly precludes us from hearing a complaint concerning “the way the IJ and BIA

exercised their discretion” in denying a continuance. Waugh v. Holder, 642 F.3d

1279, 1285 (10th Cir 2011).

      To the extent that Garcia-Tinoco argues that alleged constitutional

violations in his underlying criminal case provide jurisdiction, that argument is

similarly unavailing. Constitutional infirmities in collateral proceedings are

“categorically beyond the scope of our review” and do not give rise to jurisdiction

under § 1252(a)(2)(D). Vasiliu v. Holder, 651 F.3d 1185, 1188 (10th Cir. 2011).

                                               III

      The petition for review is DISMISSED.

                                                     Entered for the Court



                                                     Carlos F. Lucero
                                                     Circuit Judge


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