Thai Quang Ho v. Holder , 369 F. App'x 287 ( 2010 )

07-5282-ag
Ho v. Holder
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.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX 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 .
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 16 th day of March, two thousand ten.
5
6 PRESENT: PIERRE N. LEVAL,
7 ROBERT D. SACK,
8 RICHARD C. WESLEY,
9 Circuit Judges.
10
11
12 THAI QUANG HO,
13
14 Petitioner,
15
16 -v.- 07-5282-ag
17
18 ERIC H. HOLDER, JR., Attorney General, *
19
20 Respondent.
21
22
23 FOR PETITIONER: GLENN L. FORMICA, New Haven, Connecticut.
24
25 FOR RESPONDENT: JOHN J. W. INKELES, Trial Attorney
26 (Gregory G. Katsas, Acting Assistant
27 Attorney General and Francis W. Fraser,
28 Senior Litigation Counsel, on the brief),
*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
General Eric H. Holder, Jr. is automatically substituted for the former
Attorney General Michael B. Mukasey as the respondent in this matter. The
Clerk of the Court is respectfully requested to amend the official caption
accordingly.
1 for United States Department of Justice,
2 Civil Division, Office of Immigration
3 Litigation, Washington, D.C.
4
5 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
6 AND DECREED that the petition for review of the decision of
7 the Board of Immigration Appeals is DENIED.
8 Petitioner, Thai Quang Ho, a native and citizen of
9 Vietnam, seeks review of the November 2, 2007 decision of
10 the Board of Immigration Appeals (“BIA”). The BIA affirmed
11 the June 20, 2006 decision of an immigration judge (“IJ”),
12 denying petitioner’s request for a continuance for the
13 purpose of allowing an I-130 petition filed on his behalf to
14 be adjudicated and ordering him removed to Vietnam. We
15 assume the parties’ familiarity with the underlying facts,
16 the procedural history, and the issues presented for review
17 by this Court.
18 We have jurisdiction to review the denial of a
19 continuance by an IJ, and we review such a decision “for
20 abuse of discretion.” Sanusi v. Gonzales, 445 F.3d 193, 199
21 (2d Cir. 2006) (per curiam). Our review is “highly
22 deferential,” Morgan v. Gonzales, 445 F.3d 549, 551 (2d Cir.
23 2006), and there is a “heavy burden on the petitioner to
24 establish abuse of discretion,” Thapa v. Gonzales, 460 F.3d
2
1 323, 335 (2d Cir. 2006). Denial of a continuance
2 constitutes an abuse of discretion if the IJ’s decision
3 “rests on an error of law . . . or a clearly erroneous
4 factual finding or” the IJ’s “decision — though not
5 necessarily the product of a legal error or a clearly
6 erroneous factual finding — cannot be located within the
7 range of permissible decisions.” Morgan, 445 F.3d at 551-52
8 (internal quotation marks omitted). When, as in this case,
9 the BIA agrees with the conclusion of the IJ and its
10 decision tracks the reasoning of the IJ, we review both
11 decisions for purposes of completeness. See Wangchuck v.
12 Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006).
13 Here, we cannot say that the denial of a continuance
14 constitutes an abuse of discretion.
15 The IJ denied Ho’s request for a continuance on the
16 ground that he would not be eligible to adjust status, even
17 if the I-130 visa petition filed on his behalf were
18 approved, because a visa was not immediately available to
19 him (by reason of quota numbers for visas for spouses of
20 lawful permanent residents). See 8 U.S.C. § 1255(a). Ho
21 does not allege that his wife was a citizen, or even that
22 she had filed a valid application for naturalization; nor
3
1 does he allege that a visa would have been immediately
2 available to him for some other reason. Accordingly, the IJ
3 acted well within his broad discretion in denying Ho’s
4 request for a continuance, as his “eligibility for
5 adjustment of status was . . . speculative at best.”
6 Elbahja v. Keisler, 505 F.3d 125, 129 (2d Cir. 2007) (per
7 curiam). Contrary to the argument raised by petitioner, the
8 policy animating the Amerasian Immigration Act, 8 U.S.C. §
9 1154(f), is not implicated in this case.
10 The Due Process Clause requires that an alien in a
11 removal proceeding “receive a full and fair hearing which
12 provides a meaningful opportunity to be heard.” Capric v.
13 Ashcroft, 355 F.3d 1075, 1087 (7th Cir. 2004); see also Li
14 Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 104-05 (2d
15 Cir. 2006). Here, however, “[p]etitioner points to nothing
16 in the record suggesting that []he was denied a full and
17 fair opportunity to present h[is] claims; nor has []he
18 established that the IJ or the BIA otherwise deprived h[im]
19 of fundamental fairness.” Xiao Ji Chen v. U.S. Dep’t of
20 Justice, 434 F.3d 144, 155 (2d Cir. 2006). Even assuming
21 petitioner has a constitutionally protected liberty
22 interest, his claim that he was denied a “full and fair”
4
1 hearing is without merit. See Yuen Jin v. Mukasey, 538 F.3d
2 143, 157 (2d Cir. 2008); see also Morgan, 445 F.3d at 552.
3 As we have completed our review, the stay of removal
4 previously granted by this Court is VACATED. For the
5 foregoing reasons, the petition for review is DENIED.
6
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
9
10
5