Sotamba v. Barr ( 2019 )

17-4158
Sotamba v. Barr
BIA
Straus, IJ
A208 484 626
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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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 9th
day of July, two thousand nineteen.
PRESENT:
DENNIS JACOBS,
DEBRA ANN LIVINGSTON,
JOSEPH F. BIANCO,
Circuit Judges.
_____________________________________
WILSON F. SOTAMBA, AKA OSCAR
CRIOLLO-VAZQUES,
Petitioner,
v. 17-4158
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Kevin R. Murphy, Law Office of Kevin
R. Murphy, Springfield, MA.
FOR RESPONDENT: Andrea N. Gevas, Trial Attorney
(Joseph H. Hunt, Assistant Attorney
General, John S. Hogan, Assistant
Director, on the brief), Office of
Immigration Litigation, United States
Department of Justice, Washington,
DC.
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 Wilson F. Sotamba, a native and citizen of Ecuador,
seeks review of a December 6, 2017 decision of the BIA dismissing
his appeal of a February 28, 2017 decision of an Immigration Judge
(“IJ”) ordering his removal and denying his request for a
continuance. In re Wilson F. Sotamba, No. A 208 484 626 (BIA Dec.
6, 2017), aff’g No. A 208 484 626 (Immig. Ct. Hartford Feb. 28,
2017). We assume the parties’ familiarity with the underlying
facts and procedural history in this case.
Under the circumstances of this case, we have reviewed both
the IJ’s and BIA’s decisions “for the sake of completeness.”
Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
2006). We review the denial of a continuance for abuse of
discretion. See Sanusi v. Gonzales, 445 F.3d 193, 199 (2d Cir.
2006). An IJ “may grant a motion for continuance for good cause
shown,” 8 C.F.R. § 1003.29, and is “accorded wide latitude in
calendar management,” Morgan v. Gonzales, 445 F.3d 549, 551 (2d
Cir. 2006). The denial of a continuance is an abuse of discretion,
however, if the IJ’s “decision rests on an error of law (such as
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application of the wrong legal principle) or a clearly erroneous
factual finding[,] or . . . cannot be located within the range of
permissible decisions.” Id. at 551-52 (internal quotation marks
omitted). To successfully challenge the denial of a continuance
to apply for relief, an “alien [must] establish[] that that denial
caused him actual prejudice and harm and materially affected the
outcome of his case.” Matter of Sibrun, 18 I. & N. Dec. 354, 356-
57 (BIA 1983).
The IJ did not abuse his discretion in denying a continuance
here. Sotamba sought a continuance in order to apply for an
employment-based immigrant visa, but at the time the challenged
denial took place he had not yet satisfied an initial step in the
process by applying for labor certification with the Department of
Labor (“DOL”). We have held “that it does not constitute an abuse
of discretion for an IJ to decline to continue a removal proceeding
in order to permit adjudication of a removable alien’s pending
labor certification” in part because that is the “first step in
[a] long and discretionary process.” Elbahja v. Keisler, 505 F.3d
125, 129 (2d Cir. 2007) (internal quotation marks omitted). As
Sotamba was at an even earlier stage of the process, we find no
abuse of discretion in the IJ’s decision to deny the request for
a continuance. See id.
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Moreover, as the agency concluded, any relief was wholly
speculative. First, DOL needed to approve the labor
certification. 8 U.S.C. §§ 1182(a)(5)(A)(i), 1153(b)(3)(C).
Second, Sotamba’s employer would then need to file an immigrant
petition for alien worker with U.S. Citizenship and Immigration
Services (“USCIS”). Id. § 1154(a)(1)(F); Matter of Rajah, 25 I.
& N. Dec. 127, 131 (BIA 2009). Third, Sotamba’s proceedings would
need to be administratively closed for him to seek a provisional
unlawful presence waiver. See 8 C.F.R. § 212.7(e)(4)(iii) (noting
that an alien is ineligible for a waiver unless removal proceedings
are administratively closed).1 Fourth, USCIS would have to grant
a provisional waiver. Id. § 212.7(e)(1) (“USCIS has exclusive
jurisdiction to grant a provisional unlawful presence
1 BIA precedent allowed for administrative closure “to temporarily
remove a case from an [IJ’s] active calendar . . . to await an
action or event that is relevant to immigration proceedings but is
outside the control of the parties or the court and may not occur
for a significant or undetermined period of time.” Matter of
Avetisyan, 25 I. & N. Dec. 688, 692 (BIA 2012). However, that
precedent was overruled by an opinion of the United States Attorney
General following the IJ and BIA’s decisions in Sotamba’s case.
See Matter of Castro-Tum, 27 I. & N. Dec. 271, 275 (AG 2018)
(noting that no regulations issued regarding administrative
closure “delegated general authority to authorize administrative
closure” by IJs or the BIA). Nevertheless, as noted below,
Sotamba’s likely inability to qualify for a provisional waiver,
even if his case was administratively closed, obviates any need
for us to consider this change in the law as it might apply to
Sotamba’s case.
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waiver . . . .”).
Even assuming a favorable exercise of discretion at steps one
through three, Sotamba was ineligible at step four because he did
not have a qualifying relative. See Matter of Hashmi, 24 I. & N.
Dec. 785, 790 (BIA 2009) (“[T]he focus of the inquiry [of whether
to continue proceedings] is the apparent ultimate likelihood of
success on the . . . application.”). A provisional waiver requires
a showing of hardship to a qualifying relative, which is limited
to a U.S. citizen or lawful permanent resident spouse or parent.
See 8 U.S.C. § 1182(a)(9)(B)(v). Sotamba’s wife was not a U.S.
citizen or lawful permanent resident. And as the BIA noted, her
own lack of a qualifying relative to obtain a waiver made it
unlikely that her status would have changed any time soon.2
For the foregoing reasons, the petition for review is DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
2 Although Sotamba repeatedly refers in his brief to the fact that
his wife “will successfully complete her own consulate process
abroad after continuing with the . . . provisional waiver process,”
Pet. Br. 10, he never refutes the BIA’s contention that his wife
also lacks a qualifying relative, as would be needed for her to
obtain such a waiver.
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