Santos v. Holder , 558 F. App'x 102 ( 2014 )

13-629
Santos v. Holder
BIA
Straus, IJ
A079 719 022
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 13th day of March, two thousand fourteen.
PRESENT:
BARRINGTON D. PARKER,
GERARD E. LYNCH,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
JOE SANTOS,
Petitioner,
v. 13-629
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Elyssa Williams, D. Wade Luckett,
Formica Williams, P.C., New Haven,
Connecticut.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; Emily Anne Radford,
Assistant Director; Craig A. Newell,
Jr., Trial Attorney, Office of
Immigration Litigation, Civil
Division, 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 DISMISSED in part and DENIED in part.
Petitioner Joe Santos, a native and citizen of the
Dominican Republic, seeks review of a January 25, 2013,
order of the BIA, affirming the June 13, 2011, decision of
an Immigration Judge (“IJ”), which denied his request for a
continuance, denied his request for further review of an I-
751 good faith marriage waiver, and ordered him removed. In
re Joe Santos, No. A079 719 022 (B.I.A. Jan. 25, 2013),
aff’g No. A079 719 022 (Immig. Ct. Hartford June 13, 2011).
On appeal, Santos challenges the agency’s decision to deny
his I-751 good faith marriage waiver, and argues that the
agency abused its discretion in denying his motion for a
continuance while Gloria Mercado, his current wife,
challenges the denial of an I-130 visa petition she has
filed on his behalf. We review these challenges seriatim,
and assume the parties’ familiarity with the underlying
facts and procedural history of this petition.
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Denial of Marriage Waiver
Congress has conferred “sole discretion” to the agency
to decide whether to grant a hardship waiver to an eligible
petitioner and to determine “what evidence is credible and
the weight to be given that evidence,” in determining a
petitioner’s eligibility. 8 U.S.C. § 1186(c)(4); Contreras-
Salinas v. Holder, 585 F.3d 710, 713-14 (2d Cir. 2009). We
lack jurisdiction to review these purely discretionary
decisions unless they raise questions of law or
constitutional claims. See 8 U.S.C. §§ 1252(a)(2)(B)(ii),
1252(a)(2)(D).
Santos argues that the agency erred as a matter of law
in reviewing his I-751 marriage waiver petition by “failing
to balance the equities . . . and only weigh[ing] the
negative factors” and by failing to properly weigh the
evidence provided. Pet. Br. at 21. These arguments do not
concern any legal question, but rather the “ultimate
decision whether to grant relief” and “what evidence is
credible and the weight to be given that evidence,” both of
which are entrusted to the discretion of the agency by
statute and thus are not subject to review by this Court.
Atsilov v. Gonzales, 468 F.3d 112, 116 (2d Cir. 2006); see
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also Contreras-Salinas, 585 F.3d at 713-14. Accordingly, we
dismiss this portion of Santos’s petition for review.
Denial of Continuance
We review the agency’s decision to grant or deny a
continuance for abuse of discretion. Sanusi v. Gonzales,
445 F.3d 193, 198-99 (2d Cir. 2006). While it is
established agency policy that “an alien is entitled to a
continuance of removal proceedings against him while a prima
facie approvable I-130 immigrant visa petition is pending in
front of the District Director,” where, as here, an I-130
petition has been denied by the District Director and there
is a “reliable basis to conclude that the visa petition . .
. will ultimately be denied,” the I-130 petition no longer
establishes a prima facie case of eligibility. Pedreros v.
Keisler, 503 F.3d 162, 165-66 (2d Cir. 2007) (internal
quotation marks removed). Once such a “reliable basis” for
concluding the petition will be denied has been found, the
agency does not abuse its discretion in denying a
continuance, even if an appeal of the initial denial is
pending before the BIA. Id.
The District Director denied Mercado’s I-130 petition
on Santos’s behalf because of, inter alia, substantive
discrepancies and omissions in the petition and the agency’s
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determination that the petition did not adequately
demonstrate a bona fide marriage. Consequently, the agency
reasonably found that the District Director’s “very thorough
denial of the visa petition” provided a reliable basis to
believe that the I-130 petition would ultimately be denied
and, despite Mercado’s efforts to appeal that denial, the
agency did not abuse its discretion in denying a
continuance.
For the foregoing reasons, the petition for review is
DISMISSED in part and DENIED in part. As we have completed
our review, Santos’s pending motion for a stay of removal is
DENIED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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