Erwin Cespedes v. Eric Holder, Jr. , 542 F. App'x 227 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1351
ERWIN RUBEN CESPEDES,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
No. 13-1737
ERWIN RUBEN CESPEDES,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petitions for Review of Orders of the Board of Immigration
Appeals.
Submitted: September 27, 2013 Decided: October 11, 2013
Before WILKINSON, KEENAN, and WYNN, Circuit Judges.
Petitions denied by unpublished per curiam opinion.
Randall L. Johnson, JOHNSON & ASSOCIATES, P.C., Arlington,
Virginia, for Petitioner. Stuart F. Delery, Assistant Attorney
General, Jennifer L. Lightbody, Senior Litigation Counsel, Aimee
J. Carmichael, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Erwin Ruben Cespedes, a native and citizen of Bolivia,
petitions for review of orders of the Board of Immigration
Appeals (“Board”) sustaining in part and dismissing in part his
appeal from the immigration judge’s order finding that he was
removable and not eligible for cancellation of removal and
denying the motion for reconsideration. We deny the petitions
for review.
Under 8 U.S.C. § 1227(a)(2)(B)(i) (2006), an alien at
any time after admission who is convicted of an offense relating
to a controlled substance, “other than a single offense
involving possession for one’s own use of 30 grams or less of
marijuana,” is removable. The Board agreed with the immigration
judge’s finding that Cespedes’ conviction for possession of
marijuana with intent to sell, give or distribute, in violation
of Va. Code Ann. § 18.2-248.1 (2009), was a controlled substance
offense and that it was not a conviction that could include
possession of marijuana for one’s own use.
“When the issue on appeal ‘turns on an interpretation
of the [Immigration and Nationality Act] — a statute that the
BIA administers — we afford the BIA deference under the familiar
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Chevron * standard.’” Cervantes v. Holder, 597 F.3d 229, 232 (4th
Cir. 2010) (quoting Midi v. Holder, 566 F.3d 132, 136 (4th Cir.
2009)). Under Chevron, “the plain meaning of the statute
controls if the provision in question is unambiguous.”
Saintha v. Mukasey, 516 F.3d 243, 251 (4th Cir. 2008). If,
however, “the statute is silent or ambiguous with respect to the
specific issue before us, the question for this court becomes
whether the BIA’s interpretation ‘is based on a permissible
construction of the statute.’” Id. (quoting Chevron, 467 U.S.
at 843).
The “personal use” exception on which petitioner
relies “is directed at ameliorating the potentially harsh
immigration consequences of the least serious drug violations
only — that is, those involving the simple possession of small
amounts of marijuana.” Matter of Moncada-Servellon, 24 I. & N.
Dec. 62, 65 (BIA 2007) (conviction for possession of marijuana
in a prison did not qualify for the personal use exception).
The exception is not intended to apply to offenses that are
significantly more serious than simple possession “by virtue of
other statutory elements that greatly increase their severity.”
Id.*
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837 (1984).
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We conclude that the Board did not err in finding that
Cespedes’ conviction was a controlled substance offense that did
not include the possibility that he was convicted of possessing
marijuana for his own use. We note that the statute includes
elements that increase the severity of the offense beyond mere
simple possession.
Because Cespedes is an alien who was found removable
for having been convicted of a controlled substance offense, we
lack jurisdiction, except as provided in 8 U.S.C.
§ 1252(a)(2)(D) (2006), to review the final order of removal.
See 8 U.S.C. § 1252(a)(2)(C). Under 8 U.S.C. § 1252(a)(2)(D),
we can only consider “constitutional claims or questions of
law.” § 1252(a)(2)(D); see Turkson v. Holder, 667 F.3d 523, 527
(4th Cir. 2012).
Cespedes argues that the immigration judge abused his
discretion by denying his motion for continuance to pursue a
collateral attack of his underlying conviction based on
ineffective assistance of counsel. An immigration judge “may
grant a continuance for good cause shown.” 8 C.F.R. § 1003.29(2013). The Board will not overturn the denial of a continuance
unless the alien was deprived of a full and fair hearing.
Matter of Perez-Andrade, 19 I. & N. Dec. 433, 434 (BIA 1987).
The alien must show actual prejudice or harm. Matter of Sibrun,
18 I. & N. Dec. 354, 356-57 (BIA 1983). We review the denial of
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a motion for a continuance for abuse of discretion. Lendo v.
Gonzales, 493 F.3d 439, 441 (4th Cir. 2007); Onyeme v. INS, 146
F.3d 227, 231 (4th Cir. 1998). We “must uphold the [immigration
judge’s] denial of a continuance ‘unless it was made without a
rational explanation, it inexplicably departed from established
policies, or it rested on an impermissible basis, e.g.,
invidious discrimination against a particular race or group.’”
Lendo, 493 F.3d at 441 (quoting Onyeme, 146 F.3d at 231). We
conclude that the immigration judge’s denial of the motion for a
continuance was not an abuse of discretion.
Cespedes further argues that the Board abused its
discretion by denying his motion for reconsideration and by
finding that he was not eligible for cancellation of removal. A
motion to reconsider must specify the errors of law or fact in
the Board’s prior decision. See 8 U.S.C. § 1229a(c)(6)(c)
(2006); 8 C.F.R. § 1003.2(b) (2013). We review the denial of a
motion for reconsideration for abuse of discretion. Narine v.
Holder, 559 F.3d 246, 249 (4th Cir. 2009); Jean v. Gonzales, 435
F.3d 475, 481 (4th Cir. 2006).
Under 8 U.S.C. § 1229b(a) (2006), the Attorney General
may cancel removal for certain permanent residents. The
applicant must show that he has resided in the United States
continuously for seven years after having been admitted in any
status. The continuous period is terminated, as is relevant to
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these petitions, when the alien has committed an offense
referred to in 8 U.S.C. § 1182(a)(2) (2006), that renders him
removable under § 1227(a)(2). 8 U.S.C. § 1229b(d)(1).
Cespedes’ conviction is such an offense. Cespedes bore the
burden of showing that he was eligible for cancellation of
removal. 8 U.S.C. § 1229a(c)(4) (2006).
We conclude that Cespedes failed to show that he had
the requisite seven years’ continuous presence to qualify for
cancellation of removal. We further conclude that the Board did
not abuse its discretion by denying reconsideration and denying
Cespedes’ request for a remand. Cespedes failed to show that he
was eligible for cancellation of removal.
Accordingly, we deny the petitions for review. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this Court and argument would not aid the decisional process.
PETITIONS DENIED
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