NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                             ______________

                                   No. 19-3224
                                 ______________

                      MIGUEL ANTONIO MIRAMBEAUX,
                                            Petitioner
                                  v.

          ATTORNEY GENERAL UNITED STATES OF AMERICA,
                                         Respondent
                        ______________

    On Petition For Review of an Order of the Board of Immigration Appeals
                         (Agency No. A074 948 774)
                       Immigration Judge: Audra Behne
                               ______________

                              Submitted July 9, 2020
                                ______________

            Before: McKEE, BIBAS, and FUENTES, Circuit Judges.

                        (Opinion filed: September 9, 2020 )

                                 ______________

                                   OPINION
                                 ______________




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

       Miguel Antonio Mirambeaux petitions for review of a final order of the

Board of Immigration Appeals (“BIA”) affirming an Immigration Judge’s (“IJ”)

decision that his aggravated felony conviction rendered him ineligible for

withholding of removal under the Immigration and Nationality Act (“INA”).

Mirambeaux argues solely that the BIA erred in upholding the IJ’s denial of his

motion for a continuance. We will dismiss the petition for lack of jurisdiction.

                                         I.

       Mirambeaux is a citizen of the Dominican Republic who was admitted to

the United States as a lawful permanent resident on April 30, 1999. After an arrest

in November 2008, Mirambeaux pled guilty to the distribution of a controlled

dangerous substance in New Jersey Superior Court.

       On November 15, 2018, the Department of Homeland Security’s (“DHS”)

Immigration and Customs Enforcement (“ICE”) served Mirambeaux with a Notice

to Appear (“NTA”) before an IJ, charging him as removable pursuant to section

237(a)(2)(B)(i) of the INA, 8 U.S.C. § 1227(a)(2)(B)(i), for his controlled

substance conviction, and section 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii),

as an aggravated felon.

       The hearings on Mirambeaux’s removability took place over the course of

several months with the first occurring on January 17, 2019, at which DHS

presented proof of Mirambeaux’s lawful permanent resident status and his 2009


                                         2
Judgment of Conviction for distribution of a controlled dangerous substance.

During a second hearing, on February 19, 2019, the IJ reviewed Mirambeaux’s

criminal record and sustained both charges for removal.

       Mirambeaux then filed an application for withholding of removal under 8

U.S.C. § 1231(b)(3)1 with the IJ on March 25, 2019. At that time, Mirambeaux

declined to also seek protection under the Convention Against Torture (“CAT”).

Along with his application, Mirambeaux submitted evidence to support his claim

that he fears returning to the Dominican Republic “because of all the crime and

violence” in that country.

       Mirambeaux testified that his fears of returning to the Dominican Republic

stemmed from the murders of three friends over the last ten years. He testified

that he feared that the people who killed his friends may come after him upon his

return. Ultimately he was not able to identify a specific person or group he feared,

and merely referenced “[c]rime in general.”2

       Mirambeaux’s final hearing took place on April 8, 2019, at which time

Counsel made a request to renew a motion for a continuance as he required more

time to gather support documents “given the short turnaround in this case.”3 The

IJ recognized this as the first formal request for a continuance, not a renewal, and


1
  See 8 U.S.C. § 1231(b)(3) (“The Attorney General may not remove an alien to a
country if the Attorney General decides that the alien’s life or freedom would be
threatened in that country because of the alien’s race, religion, nationality,
membership in a particular social group, or political opinion.”).
2
  AR 129.
3
  Pet. Br. 10-11 (citing AR 110).
                                          3
denied the motion.4 In doing so, the IJ stated, “[t]his is a detained matter, counsel,

and he’s been detained for several months now. . . The Court does not see good

cause why those documents have not been obtained at this point.”5

       Ultimately, the IJ concluded that Mirambeaux’s aggravated felony

conviction left him statutorily ineligible for asylum, and ineligible for withholding

of removal under 8 U.S.C. § 1231(b)(3) and CAT. In denying the application, the

IJ noted that Mirambeaux could not specify who harmed his friends, and for what

reason, nor was he able to establish that the Dominican Republic’s government

would not be able to protect him from potential future crimes. Further, although

the IJ acknowledged that Mirambeaux was not seeking CAT protection, the IJ

concluded that Mirambeaux did not meet the burden for a deferral of removal

under CAT as he had not shown “it is more likely than not he would be tortured if

removed” to the Dominican Republic.6 The IJ then ordered his removal to the

Dominican Republic.

     Mirambeaux appealed the IJ’s decision to the BIA, which affirmed the IJ’s

ruling on August 29, 2019. Mirambeaux then filed a counseled petition for

review, and a motion to stay removal, which the Government opposed.


4
  The parties dispute whether counsel’s request at the April 8, 2019 hearing was
the first or second continuance request.
5
  AR 110-11.
6
  8 C.F.R. § 208.16(c)(2); App. 32-34; see also Sevoian v. Ashcroft, 

,
174-75 (3d Cir. 2002) (“An applicant for relief on the merits under [CAT] bears
the burden of establishing ‘that it is more likely than not that he or she would be
tortured if removed to the proposed country of removal.’”) (quoting 8 C.F.R. §
208.16(c)(2)).
                                          4
Subsequently, the Government filed a motion to dismiss the petition for review for

lack of jurisdiction, which Mirambeaux opposed.

                                         II.

     Mirambeaux petitions this Court for review on the sole issue of whether the

BIA properly ruled that the IJ did not abuse her discretion in denying his motion

for a continuance. This Court has jurisdiction to review a final order of removal

pursuant to 8 U.S.C. § 1252(a)(1). However, where a criminal alien is found

removable due to an aggravated felony conviction, “our review of the agency’s

determination is limited to ‘constitutional claims or questions of law.’”7 This

Court has previously held that “[t]he denial of a motion for a continuance is

discretionary” and we have “no jurisdiction to review discretionary and factual

determinations presented in petitions for review,” even when they are couched as

constitutional violations.8

     In his opening brief, Mirambeaux styles his argument as a due process claim

arguing that the speed of the proceedings before the IJ prevented him from having

a full and fair hearing.9 “We are not bound by the label attached by a party to


7
  Rachak v. Att'y Gen., 

, 216 (3d Cir. 2013) (quoting 8 U.S.C. §
1252(a)(2)(D)); see Pierre v. Att’y Gen., 

, 184 (3d Cir. 2008).
8
  

(quoting Jarbough v. Att’y Gen., 

, 188
(3d Cir. 2007)).
9
  In support of his position that the Court has jurisdiction to hear his claim,
Mirambeaux cites Hashmi v. Attorney General, 

(3d Cir. 2008). In
Hashmi the Court reviewed the BIA’s denial of a motion for a continuance for
abuse of discretion, and vacated the BIA’s decision after finding “the sole basis for
the IJ’s exercise of discretion was the IJ’s perceived ‘obligation[]’ to ‘manage
[his] calendar[]’ and ‘complete cases within a reasonable period of time.’”

characterize a claim and will look beyond the label to analyze the substance of a

claim.”10 Thus, we must evaluate whether Mirambeaux puts forth a colorable

constitutional claim.11

     As we have explained, “[t]o 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.’”12 Here, Mirambeaux’s claim of a

constitutional violation is wholly insubstantial and frivolous. Although “[a]liens

have a right to a full and fair hearing that allows them a reasonable opportunity to

present evidence on their behalf . . . , [t]o prevail on a due process claim, the alien

must show substantial prejudice.”13 Mirambeaux has not even attempted to show

that the IJ’s denial of a continuance prejudiced him or prevented him from

reasonably presenting his case. In fact, Mirambeaux concedes that his “conviction

constitutes an aggravated felony . . . prevent[ing] him from essentially all relief

except for deferral of removal under CAT” and that he “could not show [at the

time of his final hearing] that there was any indication ‘it is more likely than not

that he would be tortured if removed’ to the Dominican Republic.”14 Furthermore,


261 (emphasis in original). Hashmi, however, is distinguishable from this case
where the Court’s jurisdiction is limited, pursuant to 8 U.S.C. § 1252(a)(2)(C)-(D),
by Mirambeaux’s status as an aggravated felon.
10
   

.
11

claims’ under § 1252(a)(2)(D) must, as
a threshold, state a colorable violation of the United States Constitution.”).
12
   Pareja v. Att’y Gen., 

, 186 (3d Cir. 2010) (quoting Arbaugh v. Y &
H Corp., 

, 513 n.10 (2006)).
13
   

(internal quotations and citations omitted).
14
   Pet. Br. 23 (quoting 8 C.F.R. § 1208.17).
                                           6
Mirambeaux does not attempt to argue that he would have been able to make such

a showing if a continuance had been granted. Instead, he admits that “[i]t is not

known if [he] could make such a showing in the future.”15 Ultimately,

Mirambeaux’s abandonment of any attempt to show substantial prejudice renders

any due process claim wholly insubstantial and frivolous.

     Next, in his reply brief, Mirambeaux argues that even if he cannot make out a

constitutional claim, under the Supreme Court’s recent holding in Guerrero-

Lasprilla v. Barr,16 this case involves a “question of law” within the meaning of 8

U.S.C. § 1252(a)(2)(D). In Guerrero-Lasprilla, the Court considered whether

denials of motions to reopen removal proceedings based on equitable tolling are

reviewable by courts of appeals under § 1252(a)(2)(D). Ultimately, the Court held

that they are, noting that the exception for “‘questions of law’ includes the

application of a legal standard to undisputed or established facts.”17 We decline

Petitioner’s invitation to extend that holding to overturn our conclusion in Rachak,

that we lack jurisdiction to review the denial of a continuance.18 Unlike the

standard for equitable tolling involved in Guerrero-Lasprilla, the denial of a




15
   Id.
16
   

(2020).
17
   

.
18
   

.
                                          7
continuance is a discretionary decision,19 which does not raise a constitutional

claim or question of law.20

     For those reasons, we conclude that Mirambeaux has failed to state a

colorable constitutional claim or question of law within the meaning of 8 U.S.C.

§ 1252(a)(2)(C)-(D).

     Finally, Mirambeaux argues that this Court has jurisdiction to review his

claim under the Supreme Court’s recent decision in Nasrallah v. Barr, in which

the Court held that § 1252(a)(2)(C)-(D) does not preclude judicial review of a

noncitizen’s factual challenges to a CAT order.21 Mirambeaux, however, never

sought deferral of removal under CAT before the IJ and did not challenge the IJ’s

determination that he had not established eligibility for such relief on appeal

before the BIA. For that reason, the BIA considered the issue waived.

Accordingly, Mirambeaux’s deferral of removal CAT claim is unexhausted, and

this Court has no jurisdiction over his continuance claims on that foundation.22

Similarly, Mirambeaux did not seek withholding of removal under CAT before the


19
    Challenges to an IJ’s denial of a continuance are reviewed for abuse of
discretion. See Khan v. Att’y Gen., 

, 233 (3d Cir. 2006).
20
    See Galeano-Romero v. Barr, No. 19-9585, 

, at *4 (10th Cir.
Aug. 4, 2020) (distinguishing Guerrero-Lasprilla and concluding that the Court
did not have jurisdiction to review the Board’s discretionary determination as to
degree of hardship and noting that that “the Board’s discretionary determinations .
. . do not raise ‘questions of law’ for purposes of § 1252(a)(2)(D), even if framed
as a challenge to the application of a legal standard to established facts
under Guerrero-Lasprilla”).
21
    

, 1692 (2020).
22
    See 8 U.S.C. § 1252(d)(1); see also Bejar v. Ashcroft, 

, 132 (3d
Cir. 2003).
                                          8
IJ, conceded, in his opening brief before this Court, that he is statutorily ineligible

for such relief, and does not seek to appeal that determination. Based on that

concession, we consider any withholding of removal claim under CAT waived.

For those reasons, we reject Petitioner’s argument that, under Nasrallah, we have

jurisdiction to address the merits of his continuance arguments on the basis of

deferral of removal or withholding claims under CAT.

       In sum, we conclude that we have no jurisdiction to review the IJ’s

discretionary denial of a continuance.23 Thus, we will dismiss the petition for

review.




23
     

.
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