Pomaquiza-Quinde v. Holder ( 2014 )

12-4871
Pomaquiza-Quinde v. Holder
BIA
Straus, I.J.
A087 947 573
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
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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 29th day of April, two thousand fourteen.
PRESENT:
RALPH K. WINTER,
BARRINGTON D. PARKER,
PETER W. HALL,
Circuit Judges.
_____________________________________
MARCELO EUGENIO POMAQUIZA-QUINDE,
Petitioner,
v. 12-4871
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: James A. Welcome, Waterbury, CT.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; Blair T. O’Connor,
Assistant Director; John B. Holt,
Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED that the petition for
review is DENIED.
Marcelo Eugenio Pomaquiza-Quinde, a native and citizen
of Ecuador, seeks review of a November 21, 2012, decision of
the BIA affirming the August 2, 2011 decision of an
Immigration Judge (“IJ”) ordering him removed. In re
Marcelo Eugenio Pomaquiza-Quinde, No. A087 947 573 (B.I.A.
Nov. 21, 2012), aff’g No. A087 947 573 (Immig. Ct. Hartford
Aug. 2, 2011). We assume the parties’ familiarity with the
underlying facts and procedural history of this case.
Pomaquiza-Quinde conceded removability and challenges
only the agency’s denial of a continuance. We review such a
denial “under a highly deferential standard of abuse of
discretion.” Morgan v. Gonzales, 445 F.3d 549, 551 (2d Cir.
2006). Because the BIA explicitly stated that it did not
rely on the IJ’s ruling that Pomaquiza-Quinde had not
established his eligibility for Special Immigrant Juvenile
Status (“SIJS”), we do not consider that ruling. See Ming
Xia Chen v. BIA, 435 F.3d 141, 144 (2d Cir. 2006).
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We find no error in the agency’s denial of a third
continuance. In “adjudicating motions to continue to give
the respondent more time to prepare and the opportunity to
obtain additional evidence,” the respondent must “at a
minimum, . . . [make] a ‘reasonable showing that the lack of
preparation occurred despite a diligent good faith effort to
be ready to proceed and that any additional evidence [the
alien] seeks to present is probative, noncumulative, and
significantly favorable to the alien.’” Matter of Hashmi,
24 I&N Dec. 785, 788 (BIA 2009) (quoting Matter of Sibrun,
18 I&N Dec. 354, 356 (BIA 1983)). The IJ denied a third
continuance because Pomaquiza-Quinde had time to start
proceedings in state court but had not done so and an
attempt to convince the Department of Homeland Security to
close the case administratively appeared unsuccessful. The
record supports these findings, as Pomaquiza-Quinde provided
no evidence that any actions had been taken to determine his
juvenile status between his initial placement in proceedings
and his third hearing.
Contrary to Pomaquiza-Quinde’s argument in his brief,
his failure to file a state court action to secure a ruling
on his juvenile status was a proper reason for denying a
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third continuance, as responsibility for the delay is a
“critical” factor in a continuance determination. In re
Hashmi, 24 I&N Dec. at 793-94. In addition, Pomaquiza-
Quinde’s argument that it was improper for the agency to
consider the grant of two prior continuances is unavailing.
“[A] history of continuances being granted by the [IJ]. . .,
coupled with other relevant factors, may support a decision
to move forward with the case.” In re Hashmi, 24 I&N Dec.
at 794. The agency properly considered the prior
continuances in conjunction with the inaction and delay by
Pomaquiza-Quinde in adjudicating his juvenile status in
state court and seeking administrative closure.
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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