NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________ No. 19-1463 ______________ ELOY HERNANDEZ, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent ______________ On Petition for Review of a Decision of the Board of Immigration Appeals (No. A026-502-624) Immigration Judge: Mirlande Tadal ______________ Submitted Pursuant to Third Circuit L.A.R. 34.1(a) November 20, 2019 Before: CHAGARES, MATEY, and FUENTES, Circuit Judges (Filed: December 16, 2019) ______________ OPINION* ______________ * This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. MATEY, Circuit Judge. Eloy Hernandez petitions for review of an order of the Board of Immigration Appeals (“BIA”) affirming an Immigration Judge’s decision to deny his motion to reopen the immigration proceedings. We find no error in that decision, and lack jurisdiction to consider Hernandez’s new arguments. So we will deny his petition for review. I. BACKGROUND Hernandez is a native and citizen of Cuba. He arrived in the United States in 1985 and, four years later, became a lawful permanent resident. In January 1994, Hernandez was convicted in New York for selling a controlled substance. In 2002, he was convicted for receiving stolen property. And 2013 brought a conviction for conspiracy to commit theft by deception and a conviction for possession of cocaine with intent to distribute. Removal proceedings began in 2017, when the United States Department of Homeland Security issued a Notice to Appear enumerating Hernandez’s crimes. Hernandez appeared before the Immigration Court, admitted all factual allegations asserted in the Notice, and requested a removal order. The Immigration Court granted Hernandez’s request for removal and both parties waived the right to appeal. Then, a year later, Hernandez changed course and moved to reopen the removal hearing when his 2013 conviction for possession of cocaine with intent to distribute was vacated in state court and he instead pleaded guilty to possession of a controlled dangerous substance. Along with his motion to reopen, Hernandez applied for cancellation of removal under Section 240A(a) of the Immigration and Nationality Act (“INA”), asserting that his 2013 conviction no longer constituted an aggravated felony. Hernandez also applied for 2 relief under former Section 212(c) of the INA seeking to waive his January 1994 conviction. He argued that the vacatur of his 2013 aggravated felony conviction, combined with the waiver of his January 1994 conviction, made him eligible for cancellation of removal. But the Immigration Judge rejected Hernandez’s arguments as “mischaracteriz[ing] the statutory and regulatory framework” and denied his motion to reopen. (A.R. at 39.) The BIA affirmed without opinion, stating that the Immigration Judge’s decision would be the final agency determination. II. HERNANDEZ’S MOTION TO REOPEN WAS PROPERLY DENIED A. Our Limited Jurisdiction “Our jurisdiction is governed by Immigration and Nationality Act (INA) § 242, 8 U.S.C. § 1252, amended by the REAL ID Act of 2005, Pub. L. No. 109–13, Div. B, 119 Stat. 231, which authorizes us to review final orders of deportation, exclusion, and removal.” Desai v. Attorney Gen. ...
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