Garcia-Velazquez v. Lynch , 634 F. App'x 813 ( 2015 )

14-4275 (L), 15-354 (CON)
Garcia-Velazquez v. Lynch
BIA
Straus, IJ
A078 391 336
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
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 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 16th day of December, two thousand fifteen.
PRESENT: JOSÉ A. CABRANES,
ROSEMARY S. POOLER,
GERARD E. LYNCH,
Circuit Judges.
WILLIAM EDEN GARCIA-VELAZQUEZ,
Petitioner,
v. 14-4275 (L)
15-354 (CON)
LORETTA E. LYNCH, UNITED STATES ATTORNEY
GENERAL,
Respondent.
FOR PETITIONER: ELYSSA N. WILLIAMS, Formica Williams,
P.C., New Haven, CT.
FOR RESPONDENT: MELISSA K. LOTT, Trial Attorney, Office
of Immigration Litigation (Benjamin C.
Mizer, Principal Deputy Assistant
Attorney General, Civil Division, and M.
Jocelyn Lopez Wright, Senior Litigation
Counsel, on the brief), United States
Department of Justice, Washington, D.C.
UPON DUE CONSIDERATION of these petitions for review of Board of Immigration
Appeals (“BIA”) decisions, it is hereby ORDERED, ADJUDGED, AND DECREED that the
petitions for review are DENIED.
Petitioner William Eden Garcia-Velazquez, a native and citizen of Colombia, seeks review of a
November 6, 2014 decision of the BIA affirming a May 8, 2014 decision of an Immigration Judge
(“IJ”) ordering removal and denying a continuance. In re William Eden Garcia-Velazquez, No. A078 391
336 (B.I.A. Nov. 6, 2014), aff’g No. A078 391 336 (Immig. Ct. Hartford May 8, 2014). He also seeks
review of a January 15, 2015 decision of the BIA denying his motion to reopen. In re William Eden
Garcia-Velazquez, No. A078 391 336 (B.I.A. Jan. 15, 2015). We assume the parties’ familiarity with the
underlying facts and procedural history of the case.
I. Denial of a Continuance
Under the circumstances of this case, we have reviewed the IJ’s decision as supplemented by
the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review an IJ’s denial of a
continuance for abuse of discretion. Sanusi v. Gonzales, 445 F.3d 193, 199 (2d Cir. 2006).
“The [IJ] may grant a motion for continuance for good cause shown.” 8 C.F.R. § 1003.29.
“IJs are accorded wide latitude in calendar management, and we will not micromanage their scheduling
decisions any more than when we review such decisions by district judges.” Morgan v. Gonzales, 445
F.3d 549, 551 (2d Cir. 2006). In adjudicating a motion for a continuance based on an alien’s intention
to apply for adjustment of status using a pending visa petition, the agency may consider a variety of
factors, including:
(1) the [government’s] response to the motion; (2) whether the underlying visa petition
is prima facie approvable; (3) the [movant’s] statutory eligibility for adjustment of
status; (4) whether the [movant’s] application for adjustment merits a favorable
exercise of discretion; and (5) the reason for the continuance and other procedural
factors.
Matter of Rajah, 25 I. & N. Dec. 127, 130 (B.I.A. 2009) (quoting Matter of Hashmi, 24 I. & N. Dec. 785,
790 (B.I.A. 2009)). The BIA has emphasized that “the focus of the inquiry is the likelihood of success
on the adjustment application.” Id.
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Here, Garcia-Velazquez has not shown an abuse of discretion. The IJ applied the Hashmi
factors in denying a continuance, and there is nothing to suggest that he applied those factors
improperly or relied on erroneous factual findings. As to factor one, the Government opposed the
motion. The IJ did not expressly consider factor two, whether an I-130 petition would be prima facie
approvable, but that failure is immaterial. The Hashmi factors presume such a petition is pending, but
here, it was not—the original petition had already been denied. As to the third factor, it was unclear at
the time whether Garcia-Velazquez was statutorily eligible for adjustment because he had an extensive
criminal history and other pending charges, which might have required a waiver of inadmissibility.
The IJ, however, appeared to assume eligibility and considered the remaining factors, which weighed
against a continuance.
Importantly, the IJ considered the fourth factor, whether Garcia-Velazquez would merit a
favorable exercise of discretion, and concluded that he would not. See Hashmi, 24 I. & N. Dec. at 793.
Garcia-Velazquez has multiple convictions, which range from reckless driving to possession of stolen
property. His attempts to downplay this record by stating that “more than half” of the offenses were
“minor vehicle infractions” and emphasizing the equities are unavailing. He does not establish an
abuse of discretion—the agency considered the equities and Garcia-Velazquez points to no factual or
legal errors. See Morgan, 445 F.3d at 551-52. The agency correctly noted that Garcia-Velazquez has a
U.S. citizen wife and children, but he failed to submit evidence of his relationship with them, or other
evidence of his positive factors.
Finally, the IJ considered “other procedural factors.” Hashmi, 24 I. & N. Dec. at 790. The first
visa petition was denied in 2002, and there was no evidence, at the time, that Garcia-Velazquez’s wife
would file another given that she had not responded to telephone calls or appeared in immigration
court, and that she had an order of protection against Garcia-Velazquez at the time. Accordingly, the
petition challenging the agency’s denial of a continuance is denied.
II. Motion to Reopen
We have jurisdiction to review the denial of reopening, see Mariuta v. Gonzales, 411 F.3d 361,
364–65, 367 (2d Cir. 2005), which we review for abuse of discretion, see Ali v. Gonzales, 448 F.3d 515,
517 (2d Cir. 2006). “A motion to reopen proceedings shall not be granted unless it appears to the [BIA]
that evidence sought to be offered is material and was not available and could not have been
discovered or presented at the former hearing . . . .” 8 C.F.R. § 1003.2(c)(1); see also 8 U.S.C.
§ 1229a(c)(7)(B). The BIA will grant a motion to reopen based on “new evidence” only if it “would
likely change the result in the case.” Matter of Coelho, 20 I. & N. Dec. 464, 473 (B.I.A. 1992).
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Here, the BIA did not abuse its discretion in concluding that the new evidence was unlikely to
change its prior decision. Garcia-Velazquez still had a lengthy criminal record weighing against
adjustment of status, and he submitted only his application, criminal history, and identity evidence, not
any evidence of positive factors.
III. Conclusion
We have considered all of petitioner’s arguments, and have found them to be without merit.
Accordingly, the petition for review is DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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