Terrones Garcia v. Holder ( 2013 )

12-2738
Terrones Garcia v. Holder
BIA
Straus, IJ
A096 552 080
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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 24th day of October, two thousand thirteen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 GERARD E. LYNCH,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 PEDRO SANTIAGO TERRONES GARCIA,
14 Petitioner,
15
16 v. 12-2738
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Pedro Santiago Terrones Garcia, pro
24 se, Glastonbury, Connecticut.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Blair T. O’Connor,
28 Assistant Director; Rosanne M.
29 Perry, Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
4 review is DENIED.
5 Pedro Santiago Terrones Garcia, a native and citizen of
6 Peru, seeks review of a June 7, 2012 decision of the BIA
7 affirming the September 15, 2010 decision of an Immigration
8 Judge (“IJ”), denying Terrones Garcia’s motion for a
9 continuance and ordering him removed. In re Pedro Santiago
10 Terrones Garcia, No. A096 552 080 (B.I.A. June 7, 2012),
11 aff’g No. A096 552 080 (Immig. Ct. Hartford Sept. 15, 2010).
12 We assume the parties’ familiarity with the underlying facts
13 and procedural history of this case.
14 Under the circumstances of this case, we review both
15 the IJ’s and the BIA’s opinions “for the sake of
16 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
17 2008). Terrones Garcia challenges only the agency’s denial
18 of a continuance. We review that denial “under a highly
19 deferential standard of abuse of discretion.” Morgan v.
20 Gonzales, 445 F.3d 549, 551 (2d Cir. 2006). An IJ “may
21 grant a motion for continuance for good cause shown,”
22 8 C.F.R. § 1003.29, and only “abuse[s] his discretion in
23 denying a continuance if (1) his decision rests on an error
2
1 of law (such as the application of the wrong legal
2 principle) or a clearly erroneous factual finding or (2) his
3 decision – though not necessarily the product of a legal
4 error or a clearly erroneous factual finding – cannot be
5 located within the range of permissible decisions,” Morgan,
6 445 F.3d at 551-52 (internal quotation marks, brackets, and
7 citation omitted). The agency did not abuse its discretion
8 in denying Terrones Garcia’s motion for a continuance.
9 In denying Terrones Garcia’s motion, the agency
10 reasonably considered the factors set forth in Matter of
11 Hashmi, including, among others: (1) the Department of
12 Homeland Security’s (“DHS”) opposition to the motion;
13 (2) that the underlying visa petition was not prima facie
14 approvable since it was no longer pending; and (3) the
15 speculative nature of the basis for the requested
16 continuance. See 24 I. & N. Dec. 785, 790 (BIA 2009).
17 Moreover, the agency reasonably concluded that the visa
18 petition filed by Terrones Garcia’s wife was not prima facie
19 approvable based solely on the fact that it had been denied,
20 because Terrones Garcia proffered no factual basis for
21 concluding otherwise. Because Terrones Garcia moved for a
22 continuance to seek purely speculative relief and has not
3
1 demonstrated any error in the agency’s consideration and
2 denial of that motion, we conclude that the agency did not
3 abuse its discretion in denying his motion. See Morgan, 445
4 F.3d at 551-52; see also Elbahja v. Keisler, 505 F.3d 125,
5 129 (2d Cir. 2007) (determining that an IJ does not abuse
6 his or her discretion by denying a continuance sought to
7 pursue speculative relief).
8 For the foregoing reasons, the petition for review is
9 DENIED.
10 FOR THE COURT:
11 Catherine O’Hagan Wolfe, Clerk
4