Sylla v. Garland ( 2023 )

20-4152
Sylla v. Garland
BIA
Cassin, IJ
A079 106 370
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
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 21st day of March, two thousand twenty-
5 three.
6
7 PRESENT:
8 JOHN M. WALKER, JR.,
9 RICHARD J. SULLIVAN,
10 SARAH A. L. MERRIAM,
11 Circuit Judges.
12 _____________________________________
13
14 ALHOUSSENY SYLLA,
15 Petitioner,
16
17 v. 20-4152
18 NAC
19 MERRICK B. GARLAND, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Victor Essien, Esq., New York, NY.
25
26 FOR RESPONDENT: Brian M. Boynton, Acting Assistant
27 Attorney General; Sabatino F. Leo,
28 Assistant Director; Aaron D.
1 Nelson, Trial Attorney, Office of
2 Immigration Litigation, United
3 States Department of Justice,
4 Washington, DC.
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Alhousseny Sylla, a native and citizen of
10 Ivory Coast, seeks review of a November 16, 2020 decision of
11 the BIA affirming a November 28, 2018 decision of an
12 Immigration Judge (“IJ”) denying his motion for a continuance
13 and ordering removal. In re Alhousseny Sylla, No. A079-106-
14 370 (B.I.A. Nov. 16, 2020), aff’g No. A079-106-370 (Immigr.
15 Ct. N.Y.C. Nov. 28, 2018). We assume the parties’ familiarity
16 with the underlying facts and procedural history.
17 We have reviewed both the BIA’s and IJ’s decisions “for
18 the sake of completeness.” Wangchuck v. Dep’t of Homeland
19 Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review the
20 agency’s factual findings for substantial evidence and
21 questions of law and constitutional issues de novo. See
22 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009); Dale
23 v. Barr, 967 F.3d 133, 138 (2d Cir. 2020). “[T]he
2
1 administrative findings of fact are conclusive unless any
2 reasonable adjudicator would be compelled to conclude to the
3 contrary.” 8 U.S.C. § 1252(b)(4)(B). We review an IJ’s
4 denial of a continuance for abuse of discretion. See Sanusi
5 v. Gonzales, 445 F.3d 193, 199 (2d Cir. 2006).
6 “The [IJ] may grant a motion for continuance for good
7 cause shown.” 8 C.F.R. § 1003.29. * “IJs are accorded wide
8 latitude in calendar management.” Morgan v. Gonzales, 445
9 F.3d 549, 551 (2d Cir. 2006). An IJ abuses her discretion in
10 denying a continuance “if (1) [her] decision rests on an error
11 of law (such as application of the wrong legal principle) or
12 a clearly erroneous factual finding or (2) [her] decision—
13 though not necessarily the product of a legal error or a
14 clearly erroneous factual finding—cannot be located within
15 the range of permissible decisions.” Id. at 551–52 (internal
16 quotation marks omitted).
17 The IJ did not abuse her discretion. Even after Sylla
18 had been granted three continuances, he failed to demonstrate
19 a diligent, good-faith effort to be ready to proceed at his
* We cite the version of the regulations in place at the time of
the agency’s proceedings.
3
1 November 2018 hearing as he did not produce an application
2 for relief from removal or evidence requested by the IJ. See
3 Matter of Sibrun, 18 I. & N. Dec. 354, 356 (B.I.A. 1983)
4 (requiring “a reasonable showing that the lack of preparation
5 occurred despite a diligent good faith effort to be ready to
6 proceed”). The IJ’s consideration of the history of
7 continuances in Sylla’s case was proper. See Morgan, 445
8 F.3d at 553 (“[I]mmigration cases are not games . . . . [A]n
9 IJ [should not] be required to[] indulge . . . attempts to
10 introduce needless delay into what are meant to be streamlined
11 proceedings.” (internal quotation marks and citations
12 omitted)).
13 Finally, to the extent Sylla argues that he was deprived
14 of due process or received ineffective assistance of counsel,
15 he has not demonstrated the prejudice required to state a due
16 process claim, e.g., that he has a basis for asylum, or that
17 he complied with the procedural requirements for an
18 ineffective assistance of counsel claim. See Garcia-Villeda
19 v. Mukasey, 531 F.3d 141, 149 (2d Cir. 2008) (“Parties
20 claiming denial of due process in immigration cases must, in
21 order to prevail, allege some cognizable prejudice fairly
4
1 attributable to the challenged process.” (internal quotation
2 marks omitted)); Jian Yun Zheng v. U.S. Dep’t of Just., 409
3 F.3d 43, 47 (2d Cir. 2005)(holding that a petitioner who fails
4 to comply substantially with the procedural requirements for
5 an ineffective assistance claim “forfeits” that claim in this
6 court).
7 For the foregoing reasons, the petition for review is
8 DENIED. All pending motions and applications are DENIED and
9 stays VACATED.
10 FOR THE COURT:
11 Catherine O’Hagan Wolfe,
12 Clerk of Court
13
5