Cruz Pomavilla v. Sessions

16-3986
Cruz Pomavilla v. Sessions
BIA
Christensen, IJ
A094 226 639
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
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 11th day of June, two thousand eighteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 GUIDO CALABRESI,
9 JOSÉ A. CABRANES,
10 Circuit Judges.
11 _____________________________________
12
13 JOSE ROLANDO CRUZ POMAVILLA,
14 AKA JOSE CRUZ, AKA JOSE O CRUZ,
15 AKA JUSTIN CRUZ, AKA JOSE
16 ROLANDO CRUZ, AKA JOSE ROLANDO
17 POMAVILLA,
18 Petitioner,
19
20 v. 16-3986
21 NAC
22 JEFFERSON B. SESSIONS III,
23 UNITED STATES ATTORNEY GENERAL,
24 Respondent.
25 _____________________________________
26
27 FOR PETITIONER: Garth A. Molander, Bohemia, NY.
28
29
1 FOR RESPONDENT: Chad A. Readler, Acting Assistant
2 Attorney General; Linda S.
3 Wernery, Assistant Director;
4 Brendan T. Moore, Trial Attorney,
5 Office of Immigration Litigation,
6 United States Department of
7 Justice, Washington, DC.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is DENIED.
13 Petitioner Jose Rolando Cruz Pomavilla, a native and
14 citizen of Ecuador, seeks review of an October 31, 2016,
15 decision of the BIA affirming a March 15, 2016, decision of
16 Immigration Judge (“IJ”) Jesse Christensen denying Cruz
17 Pomavilla’s motion for a continuance. In re Jose Rolando
18 Cruz Pomavilla, No. A 094 226 639 (B.I.A. Oct. 31, 2016),
19 aff’g No. A 094 226 639 (Immig. Ct. N.Y. City Mar. 15, 2016).
20 We assume the parties’ familiarity with the underlying facts
21 and procedural history in this case.
22 Under the circumstances of this case, we have reviewed
23 both the IJ’s and the BIA’s decisions “for the sake of
24 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
25 524, 528 (2d Cir. 2006). We review the agency’s denial of a
2
1 continuance for abuse of discretion. Morgan v. Gonzales, 445
2 F.3d 549, 551 (2d Cir. 2006). An IJ “may grant a motion for
3 continuance for good cause shown,” 8 C.F.R. § 1003.29, and we
4 accord IJs “wide latitude in calendar management,” Morgan,
5 445 F.3d at 551. An IJ abuses his discretion only if
6 “(1) [his] decision rests on an error of law (such as
7 application of the wrong legal principle) or a clearly
8 erroneous factual finding or (2) [his] decision—though not
9 necessarily the product of a legal error or a clearly
10 erroneous factual finding—cannot be located within the range
11 of permissible decisions.” Id. at 551-52 (alterations in
12 original). IJs “must grant a reasonable and realistic period
13 of time to provide a fair opportunity for a respondent to
14 seek, speak with, and retain counsel.” Matter of C-B-, 25
15 I. & N. Dec. 888, 889 (B.I.A. 2012).
16 Cruz Pomavilla has shown no abuse of discretion. Cruz
17 Pomavilla received a continuance of nearly three months in
18 September 2015 to retain an attorney, and another three-month
19 continuance in December 2015, to apply for asylum and to
20 continue to seek counsel. While he requested another
21 continuance, he failed to show good cause because he offered
3
1 no evidence to support his allegation that his employer had
2 retained an attorney for him. Indeed, the IJ contacted the
3 attorney in question, who stated that he did not represent
4 Cruz Pomavilla. The IJ denied Cruz Pomavilla’s request for
5 a further continuance after considering the number of
6 continuances Cruz Pomavilla had already received and the fact
7 that, despite being warned that he would not be granted
8 additional continuances, he still failed to retain counsel
9 during the two last adjournments. Accordingly, the IJ did
10 not abuse his discretion by denying a further continuance.
11 Cruz Pomavilla’s additional arguments fail. First,
12 contrary to Cruz Pomavilla’s contentions, a 2013 internal BIA
13 memorandum does not require IJs to give two continuances;
14 rather, it states a general policy that, “absent good cause
15 shown, no more than two continuances should be granted . . .
16 for the purpose of obtaining legal representation.” See
17 Memorandum from Brian M. O’Leary, Chief Immigration Judge,
18 Office of the Chief Immigration Judge, to all Immigration
19 Judges and Administrators, OPPM 13-01, Continuances and
20 Administrative Closure (Mar. 7, 2013) at 2. Regardless, Cruz
21 Pomavilla received two continuances here. Second, the
4
1 factors laid out in Matter of Hashmi, 24 I. & N. Dec. 785
2 (B.I.A. 2009), do not apply because there was no pending
3 application with any other agency. Third, the denial of a
4 continuance did not deprive Cruz Pomavilla of due process
5 because he had multiple opportunities to obtain counsel, file
6 applications, and present evidence. See Burger v. Gonzales,
7 498 F.3d 131, 134 (2d Cir. 2007) (holding that due process in
8 immigration proceedings is satisfied by notice and an
9 opportunity to be heard).
10 For the foregoing reasons, the petition for review is
11 DENIED. As we have completed our review, any stay of removal
12 that the Court previously granted in this petition is VACATED,
13 and any pending motion for a stay of removal in this petition
14 is DISMISSED as moot. Any pending request for oral argument
15 in this petition is DENIED in accordance with Federal Rule of
16 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
17 34.1(b).
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe,
20 Clerk of Court
5