Clarke v. Lynch ( 2016 )

14-2651
Clarke v. Lynch
BIA
Montante, IJ
A200 810 429
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
CORRECTED SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the
Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the 14th day
of March, two thousand sixteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
ROBERT D. SACK,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
MICHAEL ANTHONY CLARKE,
Petitioner,
v. 14-2651
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: SERGEI OREL, (S. Michael Musa-Obregon,
on the brief), Maspeth, New York.
FOR RESPONDENT: JOSEPH A. O’CONNELL, Attorney (Benjamin
C. Mizer, Principal Deputy Assistant
Attorney General; Cindy S. Ferrier,
Assistant Director, on the brief),
Office of Immigration Litigation,
United States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a Board
of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,
ADJUDGED, AND DECREED that the petition for review is DENIED.
Petitioner Michael Anthony Clarke, a native and citizen of
Jamaica, seeks review of a June 25, 2014, decision of the BIA
affirming the June 17, 2013, decision of an Immigration Judge (“IJ”)
ordering that Clarke be removed to Jamaica. In re Michael Anthony
Clarke, No. A200 810 429 (B.I.A. June 25, 2014), aff’g No. A200 810
429 (Immig. Buffalo June 17, 2013). In his petition for review,
Clarke argues that the IJ erred in denying Clarke’s motion to change
venue or, in the alternative, to continue the removal proceedings.
Clarke also asks this Court to remand to allow the BIA to hear new
evidence related to Clarke’s marriage to a United States citizen
during the pendency of this petition. We assume the parties’
familiarity with the underlying facts and procedural history in this
case.
We review the denial of a request for a change of venue or a
continuance for abuse of discretion. Morgan v. Gonzales, 445 F.3d
549, 551 (2d Cir. 2006); Monter v. Gonzales, 430 F.3d 546, 558 (2d
Cir. 2005). To secure a remand, a petitioner challenging such a
denial must demonstrate not only that the IJ abused its discretion,
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but also that the denial prejudiced the petitioner. See Lovell v.
INS, 52 F.3d 458, 460-61 (2d Cir. 1995).
Even assuming, arguendo, that the IJ abused its discretion in
denying Clarke’s motion, we agree with the BIA that Clarke has failed
to show any prejudice. Clarke sought a venue change to facilitate
the presentation of evidence. However, because Clarke admitted that
he was removable, there was no need for the Immigration Court to hear
any evidence unless and until an I-360 visa petition that Clarke had
filed was granted, a necessary step in Clarke’s effort to be
reclassified as a lawful permanent resident. Clarke’s petition,
which was decided by the United States Citizenship and Immigration
Services, not the Immigration Court, was ultimately denied. Thus,
the Immigration Court’s refusal to grant a venue change could not
have prejudiced Clarke. Similarly, Clarke sought a continuance to
allow him to await a final decision on his I-360 visa petition. Here,
too, the denial of the petition precludes any finding of prejudice.
We also reject Clarke’s request that we remand these proceedings
to allow the BIA to take additional evidence related to Clarke’s
recent marriage to a United States citizen. We lack any statutory
authority to order the taking of additional evidence. See 8 U.S.C.
§ 1252(a)(1). Furthermore, to the extent that we retain any
inherent power to remand for additional fact-finding in
agency cases that present extraordinary and compelling
circumstances[,] . . . the exercise of such an inherent
power is not warranted if . . . : [i] the basis for the
remand is an instruction to consider documentary evidence
that was not in the record before the BIA; and [ii] the
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agency regulations set forth procedures to reopen a case
before the BIA for the taking of additional evidence.
Xiao Xing Ni v. Gonzales, 494 F.3d 260, 269 (2d Cir. 2007). Here,
to start, there is nothing extraordinary or compelling about Clarke’s
case, which was commenced in September 2010 and is only still pending
as a result of numerous postponements ordered for Clarke’s benefit.
Additionally, the evidence of Clarke’s marriage was not before the
BIA, and agency regulations provide an avenue for Clarke to seek to
reopen the proceedings below. See 8 C.F.R.
§ 1003.2(c)(3)(iii); see also Xiao Xing Ni, 494 F.3d at 271 (“The
ability of a particular petitioner to successfully reopen
proceedings in the agency does not bear on the question.” (emphasis
in original)).*
For the foregoing reasons, the petition for review is DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
* Having rejected Clarke’s request for a remand, we dismiss the
government’s motion to strike the extra-record evidence Clarke has
submitted with his brief as moot.
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