Ramos-Gorrin v. Lynch , 675 F. App'x 13 ( 2017 )

15-4177
Ramos-Gorrin v. Lynch
BIA
Connelly, IJ
A208 078 140
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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 10th day of January, two thousand seventeen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 ROSEMARY S. POOLER,
9 PETER W. HALL,
10 Circuit Judges.
11 _____________________________________
12
13 OMAR RAMOS-GORRIN,
14
15 Petitioner,
16
17 v. 15-4177
18
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21
22 Respondent.
23 _____________________________________
24
25 FOR PETITIONER: Stephen K. Tills, Orchard
26 Park, New York.
27
1 FOR RESPONDENT: Benjamin C. Mizer, Principal
2 Deputy Assistant Attorney
3 General; Terri J. Scadron,
4 Assistant Director; Hillel R.
5 Smith, Attorney, Office of
6 Immigration Litigation,
7 United States Department of
8 Justice, Washington, D.C.
9
10 UPON DUE CONSIDERATION of this petition for review of a
11 Board of Immigration Appeals (“BIA”) decision, it is hereby
12 ORDERED, ADJUDGED, AND DECREED that the petition for review is
13 DENIED.
14 Petitioner Omar Ramos-Gorrin, a citizen of Spain and Cuba,
15 seeks review of a December 14, 2015, decision of the BIA
16 affirming the August 25, 2015, decision of an Immigration Judge
17 (“IJ”) denying his motion for a continuance in asylum-only
18 proceedings. In re Omar Ramos-Gorrin, No. A208 078 140 (B.I.A.
19 Dec. 14, 2015), aff’g No. A208 078 140 (Immig. Ct. Batavia Aug.
20 25, 2015). We assume the parties’ familiarity with the
21 underlying facts and procedural history in this case.
22 Under the circumstances of this case, we have reviewed both
23 the IJ’s and the BIA’s decisions “for the sake of completeness.”
24 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
25 2006). We review the IJ’s denial of a request for a continuance
26 “under a highly deferential standard of abuse of discretion.”
27 Morgan v. Gonzales, 445 F.3d 549, 551 (2d Cir. 2006). The IJ
28 did not abuse its discretion in denying Ramos-Gorrin’s motion
29 to continue his asylum-only proceedings to pursue adjustment
30 of status under the Cuban Adjustment Act.
31 An IJ “may grant a motion for continuance for good cause
32 shown.” 8 C.F.R. § 1003.29. The IJ abuses his discretion only
33 if his “decision rests on an error of law (such as application
34 of the wrong legal principle)[,] . . . a clearly erroneous
35 factual finding[,] or . . . cannot be located within the range
36 of permissible decisions.” Morgan, 445 F.3d at 551-52 (quoting
37 Zervos v. Verizon New York, Inc., 252 F.3d 163, 169 (2d Cir.
38 2001)).
39 Under the Visa Waiver Program (“VWP”), “certain aliens may
40 enter the United States without a visa for up to 90 days if they
41 waive their right to contest any action for deportation (other
2
1 than on the basis of an asylum application) against them.”
2 Jean-Baptiste v. Reno, 144 F.3d 212, 216-17 (2d Cir. 1998); see
3 also 8 U.S.C. § 1187. In asylum only proceedings (commenced
4 after a VWP violator seeks asylum),
5 [t]he scope of review . . . [is] limited to a
6 determination of whether the alien is eligible for
7 asylum or withholding or deferral of removal, and .
8 . . all parties are prohibited from raising or
9 considering any other issues, including but not
10 limited to issues of admissibility, deportability,
11 eligibility for waivers, and eligibility for any other
12 form of relief.
13 8 C.F.R. § 1208.2(c)(3)(i). And, although a VWP participant
14 may adjust to lawful status, he “may not contest removal on the
15 basis of an adjustment of status application filed after that
16 participant overstays the 90-day period of authorized stay.”
17 Gjerjaj v. Holder, 691 F.3d 288, 293 (2d Cir. 2012) (addressing
18 adjustment based on immediate relative visa petition).
19 Because Ramos-Gorrin did not apply to adjust status prior
20 to expiration of his 90-day authorized stay, he was not
21 permitted to contest his removal or obtain a continuance in
22 order to do so in his asylum-only proceedings. See 8 C.F.R.
23 § 1208.2(c)(3)(i); Gjerjaj, 691 F.3d at 293. Moreover,
24 Ramos-Gorrin admitted that he was not eligible to adjust status
25 at the time he requested a continuance. See Elbahja v. Keisler,
26 505 F.3d 125, 128-29 (2d Cir. 2007) (providing that because “the
27 petitioner was not, at the time of the hearing, ‘eligible for
28 adjustment of status, . . . he had no right to yet another delay
29 in the proceedings so that he could attempt to become eligible
30 for such relief’” (quoting Morgan, 445 F.3d at 552)).
31 Accordingly, the agency did not abuse its discretion in finding
32 no good cause to continue Ramos-Gorrin’s proceedings. See
33 Morgan, 445 F.3d at 551-52.
34 For the foregoing reasons, the petition for review is
35 DENIED.
36 FOR THE COURT:
37 CATHERINE O’HAGAN WOLFE, CLERK
3