Brown v. Sessions ( 2018 )

17-2468
Brown v. Sessions
BIA
Kolbe, IJ
A035 670 443
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.
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 4th
day of October, two thousand eighteen.
PRESENT:
PETER W. HALL,
GERARD E. LYNCH,
Circuit Judges,
WILLIAM F. KUNTZ*,
Judge.
_____________________________________
GLENROY NEIL BROWN, AKA GLEN
BROWN, AKA GLENROY N. BROWN,
Petitioner,
v. 17-2468
JEFFERSON B. SESSIONS III,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Michael Z. Goldman, New York, NY.
FOR RESPONDENT: Jaclyn E. Shea, Trial Attorney, Chad
A. Readler, Acting Assistant
Attorney General, Civil Division,
Derek C. Julius, Assistant Director,
Office of Immigration Litigation,
United States Department of Justice,
Washington, DC.
* Judge William F. Kuntz of the United States District Court for
the Eastern District of New York, sitting by designation.
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 DENIED.
Petitioner Glenroy Neil Brown, a native and citizen of
Jamaica, seeks review of a July 13, 2017 decision of the BIA
dismissing his appeal of an October 6, 2016 decision of an
Immigration Judge (“IJ”) ordering his removal and finding him
ineligible for cancellation of removal. In re Glenroy Neil Brown,
No. A 035 670 443 (B.I.A. July 13, 2017), aff’g No. A 035 670 443
(Immig. Ct. N.Y. City Oct. 6, 2016). We assume the parties’
familiarity with the underlying facts and procedural history of
this case.
Our jurisdiction to review Brown’s removal order is limited
to constitutional claims or questions of law, which we review de
novo. See 8 U.S.C. § 1252(a)(2)(C),(D); Pierre v. Holder, 588
F.3d 767, 772 (2d Cir. 2009). We have reviewed the IJ’s decision
as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d
268, 271 (2d Cir. 2005). Brown challenges the IJ’s acceptance of
amended charges filed by the Department of Homeland Security
(“DHS”) and the IJ’s denial of a continuance to attack collaterally
the convictions underlying the removal order in state court.
Brown makes two legal arguments regarding the IJ’s acceptance
of DHS’s Form I-261, which amended the charges in the original
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Notice to Appear. First, he contends that the IJ was precluded
from admitting the document because “[i]f an application or
document is not filed within the time set by the Immigration Judge,
the opportunity to file that application or document shall be
deemed waived.” 8 C.F.R. § 1003.31(c) (emphasis added). Rather
than impose obligations on the IJ, however, 8 C.F.R. § 1003.31(c)
confers upon the IJ “broad discretion to set and extend filing
deadlines” and enables the IJ to compel the parties to timely
submit documents. Dedji v. Mukasey, 525 F.3d 187, 191 (2d Cir.
2008).
Moreover, the regulations permit DHS to file additional or
replacement charges of removability “[a]t any time” during ongoing
removal proceedings and provide the applicant time to respond to
those charges. See 8 C.F.R. § 1003.30 (providing that DHS may
file additional or substitute charges of removability “[a]t any
time during deportation or removal proceedings” and that an “alien
may be given a reasonable continuance to respond to the additional
factual allegations and charges”). These conditions were met
here: DHS filed amended charges two days after the hearing at which
the IJ took pleadings on the original charges, and Brown was not
prejudiced because he had time to reply to the additional charges
in his brief addressing removability. Indeed, Brown does not
articulate any way in which the amended version of the charges
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expanded or substantively altered the nature of the charges against
him, or in which his defense of the amended charges was even
altered, by the filing of the amended Form I-261. The IJ did not
commit a legal error resulting in an abuse of discretion. See
Dedji, 525 F.3d at 191-92.
Second, Brown contends that the doctrine of law of the case
bound the agency to the IJ’s statement that DHS had waived its
opportunity to amend. The law-of-the-case doctrine, however, does
not constrain the ability of DHS to lodge additional or amended
charges during the pendency of removal proceedings. As applicable
to Brown’s argument, the doctrine “holds that when a court has
ruled on an issue, that decision should generally be adhered to by
that court in subsequent stages in the same case, unless cogent
and compelling reasons militate otherwise.” United States v.
Quintieri, 306 F.3d 1217, 1225 (2d Cir. 2002) (internal citations
and quotation marks omitted). We have recognized that the law of
the case doctrine “is discretionary and does not limit a court’s
power to reconsider its own decisions prior to final judgment.”
Maraschiello v. City of Buffalo Police Dep't, 709 F.3d 87, 97 (2d
Cir. 2013) (quotation marks omitted).
Brown’s argument is unavailing because the IJ’s decision to
accept the Form I-261 was based on “cogent and compelling reasons.”
Quintieri, 306 F.3d at 1225. Given the lack of prejudice to Brown
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and the societal interest in accurately assessing removability,
there was sufficient reason for the IJ to accept the Form I-261
despite DHS’s tardiness. The law of the case doctrine did not
eliminate the IJ’s “power to reconsider its own decisions.”
Maraschiello, 709 F.3d at 97.
Brown also challenges the IJ’s denial of a continuance. We
review an IJ’s denial of a continuance for abuse of discretion.
See Sanusi v. Gonzales, 445 F.3d 193, 199 (2d Cir. 2006) (per
curiam). “An abuse of discretion may be found . . . where the
[agency’s] decision provides no rational explanation, inexplicably
departs from established policies, is devoid of any reasoning, or
contains only summary or conclusory statements; that is to say,
where the [agency] has acted in an arbitrary or capricious manner.”
Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir. 2001)
(internal citations omitted); see also Morgan v. Gonzales, 445
F.3d 549, 551-52 (2d Cir. 2006).
An IJ may grant a continuance for “good cause shown.” 8
C.F.R. § 1003.29. “IJs are accorded wide latitude in calendar
management, and we will not micromanage their scheduling decisions
any more than when we review such decisions by district judges.”
Morgan, 445 F.3d at 551.
Brown’s challenge to the denial of a continuance fails because
there is no legal or constitutional error in the IJ’s ruling. The
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IJ granted two continuances for Brown to seek postconviction relief
and directed him to provide evidence that he had filed motions in
state court (and therefore had some possibility of success) if he
wanted a further adjournment. Because Brown did not file any
collateral attack in state court, the IJ did not err in declining
to continue proceedings further. See Elbahja v. Keisler, 505 F.3d
125, 129 (2d Cir. 2007) (concluding that denial of continuance is
not abuse of discretion where relief sought is speculative);
Morgan, 445 F.3d at 553 (“[W]e will not, nor should an IJ be
required to, indulge [petitioner’s] attempts to introduce needless
delay into what are meant to be ‘streamlined’ proceedings.”).
Finally, Brown’s argument that the IJ ignored his positive equities
in denying a continuance is without merit because the relevant
inquiry is whether Brown established good cause for a continuance.
8 C.F.R. § 1003.29.
For the foregoing reasons, the petition for review is DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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