Amides-Galdamez v. Barr ( 2020 )

19-1290
Amides-Galdamez v. Barr
BIA
Poczter, IJ
A205 734 146
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
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 22nd day of April, two thousand twenty.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 DENNY CHIN,
10 RAYMOND J. LOHIER, JR.,
11 Circuit Judges.
12 _____________________________________
13
14 JOSE AMIDES-GALDAMEZ,
15 Petitioner,
16
17 v. 19-1290
18 NAC
19 WILLIAM P. BARR, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Abdolreza Mazaheri, Esq., Sethi &
25 Mazaheri, LLC, New York, NY.
26
27 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
28 General; Jessica E. Burns, Senior
1 Litigation Counsel; Edward C.
2 Durant, Trial Attorney, Office of
3 Immigration Litigation, United
4 States Department of Justice,
5 Washington, DC.
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
9 is DENIED.
10 Petitioner Jose Amides-Galdamez, a native and citizen of
11 El Salvador, seeks review of an April 1, 2019 decision of the
12 BIA affirming an October 12, 2018 decision of an Immigration
13 Judge (“IJ”) ordering removal and denying asylum, withholding
14 of removal, and relief under the Convention Against Torture.
15 In re Jose Amides-Galdamez, No. A 205 734 146 (B.I.A. Apr. 1,
16 2019), aff’g No. A 205 734 146 (Immig. Ct. N.Y. City Oct. 12,
17 2018). We assume the parties’ familiarity with the
18 underlying facts and procedural history in this case.
19 We have reviewed both the IJ’s and BIA’s opinions “for
20 the sake of completeness.” Wangchuck v. Dep’t of Homeland
21 Sec., 448 F.3d 524, 528 (2d Cir. 2006). Amides-Galdamez does
22 not challenge his removability or the denial of asylum and
23 related relief. He asserts only that the agency erred in
24 declining to continue his removal proceedings pending a final
2
1 decision in his bond proceedings or pending resolution of his
2 application for Special Immigrant Juvenile Status (“SIJS”).
3 We review the denial of a continuance for abuse of discretion.
4 Flores v. Holder, 779 F.3d 159, 164 (2d Cir. 2015). The
5 agency abuses its discretion in denying a continuance only
6 “if (1) [the] decision rests on an error of law (such as
7 application of the wrong legal principle) or a clearly
8 erroneous factual finding or (2) [the] decision—though not
9 necessarily the product of a legal error or a clearly
10 erroneous factual finding—cannot be located within the range
11 of permissible decisions.” Morgan v. Gonzales, 445 F.3d 549,
12 551-52 (2d Cir. 2006) (internal quotation marks omitted).
13 The agency did not abuse its discretion in denying a
14 continuance based on Amides-Galdamez’s pending bond
15 proceedings or SIJS application.
16 In deciding whether to grant a continuance, the agency
17 “should assess whether good cause supports such a continuance
18 by applying a multifactor analysis, which requires that the
19 . . . principal focus be on the likelihood that the collateral
20 relief will be granted and will materially affect the outcome
21 of the removal proceedings.” Matter of L-A-B-R-, 27 I. & N.
3
1 Dec. 405, 406 (A.G. 2018). The burden of establishing good
2 cause is on the party requesting the continuance. Id. at
3 413.
4 The agency did not abuse its discretion in denying a
5 continuance based on Amides-Galdamez’s pending bond appeal.
6 The IJ and BIA correctly observed that bond proceedings are
7 “separate and apart from” removal proceedings. 8 C.F.R.
8 § 1003.19(d). Furthermore, as the agency reasoned, the
9 outcome of the bond proceedings was too speculative to support
10 a continuance for two reasons: first, the IJ had yet to
11 determine whether Amides-Galdamez posed a flight risk; and,
12 second, there was no guarantee that his SIJS application would
13 be adjudicated prior to his merits hearing even if his case
14 was transferred to the non-detained docket. Finally, Amides-
15 Galdamez’s pending bond proceedings did not relate to the
16 merits of his applications for relief from removal, but rather
17 to the timing of his hearing. See Matter of L-A-B-R-, 27 I.
18 & N. Dec. at 406.
19 The agency also did not abuse its discretion in denying
20 a continuance based on the pending SIJS application. First,
21 contrary to Amides-Galdamez’s claims, he did not file a
4
1 written motion for a continuance before the IJ or orally
2 request a continuance based on his pending SIJS application
3 at his final hearing. Accordingly, there was no request for
4 the IJ to rule on. See Prabhudial v. Holder, 780 F.3d 553,
5 555 (2d Cir. 2015) (holding that an applicant waives an issue
6 that he does not raise before the IJ); Matter of L-A-B-R-, 27
7 I. & N. Dec. at 413 (burden to establish good cause is on the
8 party requesting the continuance).
9 Second, the BIA analyzed the merits of a continuance
10 pending resolution of the SIJS application. Amides-Galdamez
11 has not shown that the BIA abused its discretion in denying
12 a continuance. While he contends that the agency neglected
13 to analyze the L-A-B-R- factors and improperly based its
14 decision solely on the remoteness of his visa priority date,
15 “good cause does not exist if the alien’s visa priority date
16 is too remote to raise the prospect of adjustment of status
17 above the speculative level.” Matter of L-A-B-R-, 27 I. &
18 N. Dec. at 418; cf. Elbahja v. Keisler, 505 F.3d 125, 129 (2d
19 Cir. 2007) (“[I]t does not constitute an abuse of discretion
20 for an IJ to decline to continue a removal proceeding in order
21 to permit adjudication of a removable alien's pending labor
5
1 certification.”). The BIA thus reasonably concluded that
2 even assuming that Amides-Galdamez was eligible for SIJS, the
3 likelihood of that relief remained speculative given the
4 “lengthy wait [time] for an available visa.” As such, the
5 agency did not abuse its discretion in determining that his
6 pending SIJS application did not constitute good cause for a
7 continuance.
8 For the foregoing reasons, the petition for review is
9 DENIED. All pending motions and applications are DENIED and
10 stays VACATED.
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe,
13 Clerk of Court
6