                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                _______________

                                      No. 14-3464
                                    _______________

                               PAULA CRUZ DE ORTIZ,
                                                Petitioner

                                             v.

              ATTORNEY GENERAL UNITED STATES OF AMERICA,
                                                   Respondent
                            _______________

                       On Petition for Review of an Order of the
                            Board of Immigration Appeals
                                (BIA–1 A044-927-258)
                     Immigration Judge: Honorable Annie S. Garcy
                                  _______________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 21, 2015

            BEFORE: FISHER, CHAGARES AND COWEN, Circuit Judges

                                  (Filed: May 11, 2015)
                                    _______________

                                       OPINION*
                                    _______________

______________

*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
COWEN, Circuit Judge.

       Paula Cruz de Ortiz petitions for review of a decision by the Board of Immigration

Appeals (“BIA”), which, in turn, dismissed her administrative appeal from the decision of

the Immigration Judge (“IJ”) pretermitting her application for cancellation of removal,

denying her request for a continuance, and ordering her removal. We will deny her

petition for review.

                                             I.

       In 1989, Petitioner, a native and citizen of the Dominican Republic, attempted to

enter the United States with an altered passport. Petitioner was convicted of forgery or

false use of a passport in violation of 18 U.S.C. § 1543 and deported. Subsequently, her

husband (a United States citizen) filed an I-130 petition for alien relative, which was

approved. A visa was issued for Petitioner by the American embassy, and she was

admitted to the United States as a conditional lawful permanent resident on February 9,

1995. However, neither Petitioner nor her husband disclosed the existence of Petitioner’s

prior conviction. On December 24, 1996, Petitioner filed an I-751 petition to remove the

conditions of her residency. This I-751 petition was approved on December 30, 1996.

       On June 27, 2009, the Department of Homeland Security (“DHS”) charged that

Petitioner was removable pursuant to 8 U.S.C. § 1227(a)(1)(A) as an alien who was

convicted of a crime involving moral turpitude under 8 U.S.C. § 1182(a)(2)(A)(i)(I) and

who was inadmissible at the time of entry under 8 U.S.C. § 1182(a)(6)(C)(i) and 8 U.S.C.

§ 1182(a)(7)(A)(i)(I). Petitioner moved to terminate the removal proceedings on the


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ground that, under 8 U.S.C. § 1256(a), DHS had no legal authority to initiate removal

proceedings more than five years from the date of her purported adjustment of status.

The IJ agreed with the Petitioner and dismissed the case. In a published decision, In re

Cruz de Ortiz, 25 I. & N. Dec. 601 (BIA Sept. 20, 2011), the BIA sustained DHS’s appeal

and remanded the case to give Petitioner an opportunity to apply for any relief for which

she may be eligible (and to allow the IJ to enter a new decision). On remand, the IJ

pretermitted Petitioner’s application for cancellation and ordered her to be removed. The

IJ also denied her motion to postpone because no I-130 petition (which could lead to an

inadmissibility waiver) had been filed on Petitioner’s behalf. Petitioner appealed to the

BIA, but the BIA dismissed her appeal.1

                                            II.

       The BIA recognized that this Court has held that the five-year statute of limitations

established by § 1256(a) extends to removal proceedings where the grounds of

removability are based on the alien’s fraud or misrepresentation in obtaining adjustment

of status.2 See Garcia v. Attorney General, 553 F.3d 724, 725-29 (3d Cir. 2009);

Bamidele v. INS, 99 F.3d 557, 558-65 (3d Cir. 1996). However, the agency determined


       1
         Petitioner filed a motion to reopen proceedings, which included proof that her
United States citizen daughter submitted an I-130 petition on her behalf (after the IJ’s
decision was issued). The IJ denied the motion on jurisdictional grounds (i.e., by the time
the motion was filed, there was an appeal pending with the BIA), and Petitioner did not
appeal to the BIA from this denial of her motion to reopen. According to Petitioner, the
daughter’s petition has been approved.

       2
         We generally possess jurisdiction over this petition for review pursuant to 8
U.S.C. § 1252.
                                             3
that this provision does not apply to an alien “who was admitted as a lawful permanent

resident from abroad and whose status was therefore never adjusted.” De Ortiz, 25 I. &

N. Dec. at 604. According to Petitioner, “the BIA erred in failing to sua sponte terminate

proceedings pursuant to 8 U.S.C. § 1256(a), which Petitioner submits, barred the

institution of removal proceedings against her, as she adjusted her status, from conditional

to permanent resident, within the United States.” (Petitioner’s Brief at 7.) We agree with

the Attorney General that the removal of conditions to lawful permanent residency does

not fall under § 1256(a). Specifically, Petitioner did not file an application for adjustment

of status to become a lawful permanent resident. Instead, she was admitted as a lawful

permanent resident through the consular process and remained a lawful permanent

resident when the conditions were removed. See, e.g., Malik v. Attorney General, 659

F.3d 253, 257 (3d Cir. 2011) (“Malik did not obtain an adjustment of status to become an

LPR [lawful permanent resident]. Instead, he derived his LPR status through the process

described in 8 U.S.C. § 1201. Because § 1256(a) explicitly discusses ‘adjustment of

status,’ the statute of limitations does not apply to the institution of removal proceedings

where Malik did not obtain his LPR status in this manner.”).

       Petitioner further contends that she was entitled to a continuance and that the IJ’s

refusal to grant her a continuance violated her due process right to a full and fair hearing.

This Court does not have jurisdiction to review a final order of removal against an alien

who is removable by reason of having committed a crime involving moral turpitude,

although we do retain jurisdiction with respect to colorable constitutional and legal


                                              4
claims. See, e.g., 8 U.S.C. § 1252(a)(2)(C), (D). We accordingly lack jurisdiction to

consider a claim that the agency abused its discretion by denying a continuance. See, e.g.,

Rachak v. Attorney General, 734 F.3d 214, 216-17 (3d Cir. 2013). With respect to

Petitioner’s due process assertions, we conclude that the IJ conducted a full and fair

hearing in this matter. We note, for instance, that Petitioner’s counsel notified the IJ at a

2010 hearing that she would be filing for a waiver of inadmissibility on the grounds that

“she has two U.S. citizen children.” (AR57.) When asked how much time would be

necessary to present evidence in support of a waiver, the attorney responded, “Not long.”

(AR59.) However, no I-130 petition had been submitted as of the February 2013 merits

hearing—at which time the IJ appropriately refused to postpone this proceeding.

                                             III.

       For the foregoing reasons, we will deny the petition for review.




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