Mi Young Lee v. Lynch ( 2015 )

14-2321
Lee v. Lynch
BIA
Straus, IJ
A097 513 105
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 TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 1st day of September, two thousand fifteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 ROBERT D. SACK,
9 REENA RAGGI,
10 Circuit Judges.
11 _____________________________________
12
13 MI YOUNG LEE,
14 Petitioner,
15
16 v. 14-2321
17 NAC
18
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: David K. S. Kim, Flushing, New York.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Acting Assistant
27 Attorney General; Douglas E.
28 Ginsburg, Assistant Director; Derek
29 C. Julius, Senior Litigation
1 Counsel, Office of Immigration
2 Litigation, United States
3 Department of Justice, Washington,
4 D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review is
9 DENIED.
10 Petitioner Mi Young Lee, a native and citizen of South
11 Korea, seeks review of a May 28, 2014, decision of the BIA
12 affirming a May 21, 2013, decision of an Immigration Judge
13 (“IJ”) denying Lee’s motion to change venue and ordering her
14 removed. In re Mi Young Lee, No. A097 513 105 (B.I.A. May 28,
15 2014), aff’g No. A097 513 105 (Immig. Ct. Hartford May 21, 2013).
16 We assume the parties’ familiarity with the underlying facts
17 and procedural history in this case. Under the circumstances
18 of this case, we review the IJ’s decision as supplemented by
19 the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.
20 2005).
21 Change of Venue
22 We review the denial of a motion to change venue for abuse
23 of discretion. Monter v. Gonzales, 430 F.3d 546, 558-59 (2d
2
1 Cir. 2005); Lovell v. INS, 52 F.3d 458, 460 (2d Cir. 1995). “An
2 IJ may grant a change of venue ‘for good cause’ upon a motion
3 by a party.” Monter, 430 F.3d at 559 (quoting 8 C.F.R.
4 § 1003.20(b)). “Even if an IJ abuses his or her discretion,
5 ‘an incorrect decision . . . would entitle petitioner to a remand
6 only if he could show that it caused him prejudice.’” Id.
7 (internal brackets omitted) (quoting Lovell, 52 F.3d at 461).
8 “In order to demonstrate prejudice, petitioner must show that
9 the denial of the venue change affected either the outcome or
10 the overall fairness of the . . . proceeding.” Lovell, 52 F.3d
11 at 461.
12 Lee cannot show that the IJ’s denial of the motion to change
13 venue prejudiced her. Although she was given an opportunity
14 to do so, she did not contest her removability or apply for any
15 relief from removal. Accordingly, as the IJ noted, there was
16 nothing to be done but enter the order of removal: whether the
17 removal order was entered in Hartford or New York City would
18 not change the outcome of the case. See id.
19 Because Lee was not prejudiced by the denial of her motion
20 to transfer venue, she was not denied due process. See
21 Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d Cir. 2008).
3
1 Administrative Closure
2 We review the BIA’s denial of administrative closure for
3 abuse of discretion. See Sanusi v. Gonzales, 445 F.3d 193, 199
4 (2d Cir. 2006) (holding that we retain jurisdiction to review
5 the agency’s denial of a continuance for abuse of discretion);
6 see also Vahora v. Holder, 626 F.3d 907, 918-19 (7th Cir. 2010)
7 (concluding that the denial of administrative closure is “most
8 closely akin” to the denial of a continuance and thus should
9 be reviewed for abuse of discretion).
10 Lee claims that she asked the IJ to administratively close
11 proceedings. She did not: Lee requested prosecutorial
12 discretion and when the IJ explained that the Department of
13 Homeland Security no longer had jurisdiction to exercise its
14 prosecutorial discretion, she did not then ask the IJ to
15 administratively close proceedings. The BIA noted that Lee had
16 not asked the IJ for administrative closure and then addressed
17 her request in the first instance.
18 Lee stated that she was requesting administrative closure
19 because if the Comprehensive Immigration Reform bill passed,
20 she would be eligible for lawful status. While the BIA may have
21 erred in stating that Lee had not offered a reason as to why
4
1 administrative closure was being sought, it nonetheless
2 appropriately considered the relevant factors. It noted that
3 DHS opposed closure because Lee had a criminal record, Lee had
4 no visa petitions or other applications for relief pending,
5 there was no anticipated end to the proposed administrative
6 closure, and no outcome other than removal was anticipated.
7 See Matter of Avetisyan, 25 I. & N. Dec. 688, 696 (B.I.A. 2012).
8 The BIA thus did not abuse its discretion in denying
9 administrative closure.
10 Lee argues that the BIA erred because it engaged in
11 fact-finding to deny administrative closure, rather than
12 remanding her case to the IJ to consider in the first instance.
13 While the BIA may not engage in fact-finding in the course of
14 deciding appeals, 8 C.F.R. § 1003.1(d)(3)(iv), Lee did not ask
15 the IJ for administrative closure and was not appealing the
16 denial of that request. Rather, she was asking the BIA in the
17 first instance to administratively close proceedings.
18 Administrative closure “is available to an Immigration Judge
19 and the Board” and “is used to temporarily remove a case from
20 an Immigration Judge’s active calendar or from the Board’s
21 docket”; thus, the BIA did not err in considering the request
5
1 for administrative closure in the first instance. Matter of
2 Avetisyan, 25 I. & N. Dec. at 692.
3 For the foregoing reasons, the petition for review is
4 DENIED. As we have completed our review, any stay of removal
5 that the Court previously granted in this petition is VACATED,
6 and any pending motion for a stay of removal in this petition
7 is DISMISSED as moot. Any pending request for oral argument
8 in this petition is DENIED in accordance with Federal Rule of
9 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
10 34.1(b).
11 FOR THE COURT:
12 Catherine O=Hagan Wolfe, Clerk
6