Banse v. Holder , 440 F. App'x 39 ( 2011 )

10-4730-ag
Banse v. Holder
BIA
Straus, IJ
A75-793-869
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.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the
2 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
3 the 16th day of November, two thousand eleven.
4
5 PRESENT:
6 AMALYA L. KEARSE,
7 JOSEPH M. MCLAUGHLIN,
8 JOSÉ A. CABRANES,
9 Circuit Judges.
10 _____________________________________
11
12 ABU BANSE,
13
14 Petitioner,
15
16 v. 10-4730-ag
17
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONERS: Abu Banse, pro se, Bronx, NY.
24
25 FOR RESPONDENT: Matthew B. George, Trial Attorney, Office of
26 Immigration Litigation (Douglas E. Ginsburg,
27 Assistant Director, Office of Immigration Litigation,
28 Tony West, Assistant Attorney General, on the brief),
29 United States Department of Justice, Washington,
30 DC.
1 UPON DUE CONSIDERATION of this petition for review of a Board of Immigration
2 Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED, that the
3 petition for review is DENIED.
4
5 Petitioner, a native and citizen of Ghana, seeks review of a November 4, 2010 order of the
6 BIA, affirming the September 1, 2009 decision of an Immigration Judge (“IJ”) which denied his
7 request for a continuance and ordered him removed. In re Abu Banse, No. A075 793 869 (B.I.A.
8 Nov. 4, 2010), aff’g No. A075 793 869 (Immig. Ct. Hartford Sept. 1, 2009). We assume the parties’
9 familiarity with the underlying facts and procedural history in this case.
10
11 Under the circumstances of this case, we have reviewed both the IJ’s and the BIA’s opinions
12 “for the sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008). We review the
13 agency’s denial of a continuance for abuse of discretion. See Singh v. U.S. Dep’t of Homeland Sec., 526
14 F.3d 72, 80-81 (2d Cir. 2008); Sanusi v. Gonzales, 445 F.3d 193, 199 (2d Cir. 2006).
15
16 The Government argues that Banse’s December 2009 remarriage to his current wife, and her
17 subsequent filing of an I-130 Petition for Alien Relative on his behalf, renders his petition for review
18 moot because these intervening events removed the basis for which he originally sought a
19 continuance from the IJ—so that his former wife could file an I-130 visa petition on his behalf. To
20 the extent Banse’s petition challenges the IJ’s denial of his continuance motion, we agree that the
21 motion is moot.
22
23 “It has long been settled that a federal court has no authority ‘to give opinions upon moot
24 questions . . . which cannot affect the matter in issue in the case before it.’” Church of Scientology v.
25 United States, 506 U.S. 9, 12 (1992) (quoting Mills v. Green, 159 U.S. 651, 653 (1895)). Here, even
26 were we to determine that the IJ abused his discretion in denying Banse’s motion for a continuance,
27 a remand would bring about no change in the case, as the basis on which Banse originally sought the
28 continuance no longer exists. See Qureshi v. Gonzales, 442 F.3d 985, 987-90 (7th Cir. 2006).
29 Accordingly, Banse’s challenge to the IJ’s denial of a continuance is moot and the claim on that basis
30 must be dismissed.
31 Banse also argues that his right to due process was violated by the denial of his request for a
32 continuance and that he received ineffective assistance of counsel during the April and September
33 2009 hearings before the IJ. As the Government counters, however, Banse did not raise these issues
34 before the BIA and, accordingly, they are unexhausted. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d
35 104, 119-22 (2d Cir. 2007) (noting that the exhaustion requirement, while not jurisdictional, is
36 mandatory).
37
38 CONCLUSION
39
40 For the foregoing reasons, the petition for review is DENIED. As a result, Petitioner’s
41 motion for a stay of removal is also DENIED.
42
43 FOR THE COURT:
44 Catherine O’Hagan Wolfe, Clerk
45
2