NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 19-1416 ___________ PRIMALFI MORALES-FROMETA, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA ____________________________________ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A058-198-621) Immigration Judge: John B. Carle _____________________________________ Submitted Pursuant to Third Circuit L.A.R. 34.1(a) May 5, 2020 Before: SHWARTZ, RESTREPO and NYGAARD, Circuit Judges (Opinion filed: May 5, 2020) ___________ OPINION * ___________ PER CURIAM Primalfi Morales-Frometa, a native and citizen of the Dominican Republic, entered the United States in 2007 as a lawful permanent resident. In 2017, he pleaded * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. guilty in Pennsylvania to violating 35 Pa. Cons. Stat. § 780-113(a)(30), related to the manufacture, delivery, or possession with intent to deliver a controlled substance. Morales-Frometa was sentenced to six to 23 months in prison. He was later charged with being removable under 8 U.S.C. § 1227(a)(2)(B)(i) and § 1227(a)(2)(A)(iii), as an alien who, after admission, was convicted of (1) a controlled substance violation and (2) the aggravated felony of illicit trafficking of a controlled substance. At an initial hearing before the Immigration Judge (“IJ”), the IJ sustained both charges of removability. Morales-Frometa filed applications for asylum and for withholding of removal, and expressed his intent to file an application for cancellation of removal. However, after the grant of three continuances and the IJ’s denial of his fourth motion to continue his individual merits hearing, Morales-Frometa moved through counsel to withdraw his applications for asylum and withholding of removal, and opted not to file an application for cancellation of removal. The IJ subsequently sustained the charges of removability, granted Morales-Frometa’s motion to withdraw his applications for relief, and ordered him removed to the Dominican Republic. See Certified Administrative Record (“A.R.”) at 122-126. The IJ concluded that Morales-Frometa’s conviction for violating 35 Pa. Cons. Stat. § 780-113(a)(30), qualified as an aggravated felony drug trafficking offense. See 8 U.S.C. § 1101(a)(43)(B). In his analysis, the IJ determined that Morales-Frometa’s state conviction would constitute an aggravated felony under either the “illicit trafficking” approach or the “hypothetical federal felony” test. 2 The Board of Immigration Appeals (“BIA”) dismissed Morales-Frometa’s appeal. See A.R. at 2-3. It agreed with the IJ’s conclusion that Morales-Frometa is subject to removal based on having been convicted for a drug trafficking aggravated felony as defined in § 1101(a)(43)(B). Additionally, given the fact that Morales-Frometa had not established that his conviction has been vacated, the BIA rejected any reliance he placed on his pending state court post-conviction relief petition based on the alleged ineffective assistance of his criminal defense attorney. Morales-Frometa timely filed a pro se petition for review. He presents three main issues. First, he argues that the BIA erred in the affirming the IJ’s determination that he was subject to removal as an aggravated felon based on his conviction. Second, he asserts that the IJ violated his ...
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