Sanchez v. Gonzales ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 30, 2007
Charles R. Fulbruge III
Clerk
No.06-60316
Summary Calendar
RAFAEL SANCHEZ,
Petitioner,
versus
ALBERTO R. GONZALES,
U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order
of the Board of Immigration Appeals
BIA No. A78 884 694
Before GARWOOD, DeMOSS and BENAVIDES, Circuit Judges.
PER CURIAM:*
Rafael Sanchez, a native and citizen of Mexico, petitions for
review of an order from the Board of Immigration Appeals (BIA)
affirming the immigration judge’s (IJ) decision to remove Sanchez
on the basis of his illegal entry and his 1993 felony drug
conviction. Sanchez argues that the IJ’s denial of his motion for
*
Pursuant to 5TH CIR. R. 47.5 the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
a continuance to seek a pardon from the state of Wyoming for his
conviction constituted an abuse of discretion. He maintains that
he has shown good cause warranting a continuance and that the
denial of a continuance resulted in a denial of a full and fair
hearing. In light of Sanchez’s inability to specify the duration
of the continuance, he cannot establish good cause. See Ahmed v.
Gonzales, 447 F.3d 433, 438-39 (5th Cir. 2006) (pending labor
certification); Witter v. INS, 113 F.3d 549, 555-56 (5th Cir. 1997)
(pending state criminal charges). Accordingly, the denial of
Sanchez’s motion for a continuance was supported by the record and
was not an abuse of discretion. See Witter, 113 F.3d at 555-56.
We also note that the record contains nothing to indicate that
Sanchez has, even as of the present time, in fact ever actually
filed a pardon application, apart from his counsel’s oral assertion
at the February 24, 2005 hearing before the ALJ, that “[a]t this
time, he is in the process of filing for a pardon with the state of
Wyoming and we request a continuance in order to process that
pardon.” Nor does anything in the record suggest any asserted
basis on which a pardon was or would be sought other than counsel’s
assertion at the February 2005 hearing that his “support [of] his
[US citizen] five children, spouse” and, inferentially, the
hardship his deportation would impose on them, was or would be the
basis; nor is there anything to suggest that there was any
likelihood whatever such a pardon would be granted; nor does the
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record contain any explanation of why no pardon had actually been
applied for sooner, notwithstanding that as of the time of the
February 2005 hearing approximately twelve years had elapsed since
the conviction and more than six months had elapsed since Sanchez
was served with the notice to appear herein; and, there is
absolutely nothing in the record before us, or in the briefs, to
suggest when any such pardon application might be acted on,
although it is now almost two years since the ALJ’s decision.**
Sanchez’s petition for review is
DENIED.
**
We assume (arguendo only) that such a pardon would remove the
conviction as a bar to Sanchez’s pending application to adjust
status. We likewise assume (arguendo only) that Sanchez adequately
preserved before the BIA his claim in this court that denial of the
continuance resulted in denial of a full and fair hearing.
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