Maniowska v. Holder

09-2206-ag
Maniowska v. Holder
BIA
Straus, IJ
A098 534 349
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY
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. W HEN CITING A SUM M ARY ORDER
IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE EITHER THE FEDERAL APPENDIX OR
AN ELECTRONIC DATABASE (W ITH THE NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY
ORDER M UST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the
2 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
3 on the 22nd day of June, two thousand ten.
4
5 PRESENT:
6
7 JOSEPH M. McLAUGHLIN,
8 GUIDO CALABRESI,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _______________________________________________
12
13 ANNA MARIA MANIOWSKA,
14
15 Petitioner,
16 v. 09-2206-ag
17
18 ERIC H. HOLDER, JR., ATTORNEY GENERAL
19 OF THE UNITED STATES,
20
21 Respondent.
22 ______________________________________________
23
24 FOR PETITIONER: Glenn L. Formica, Formica, P.C., New Haven, Connecticut.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney General; Christopher C.
27 Fuller, Senior Litigation Counsel; Ann Carroll Varnon, Trial
28 Attorney, Office of Immigration Litigation, United States
29 Department of Justice, Washington, D.C.
1
1 UPON DUE CONSIDERATION of this petition for review of a Board of Immigration
2 Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, and DECREED that the petition
3 for review be DENIED.
4 Petitioner Anna Maria Maniowska, a native and citizen of Poland, seeks review of a May
5 14, 2009 order of the BIA dismissing her appeal from the October 2, 2007 decision of Immigration
6 Judge (“IJ”) Michael W. Straus, which denied her motion for a continuance of her removal
7 proceedings and ordered Petitioner removed to Poland. In re Anna Maria Maniowska, No. A098
8 534 349 (B.I.A. May 14, 2009), aff’g No. A098 534 349 (Immig. Ct. Hartford Oct. 2, 2007). We
9 assume the parties’ familiarity with the underlying facts and procedural history in this case and with
10 the issues presented for review.
11 Under the circumstances of this case, we review the decision of the IJ as supplemented by
12 the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable standards
13 of review are well established. See Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008); Manzur v.
14 U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007).
15 We have jurisdiction to consider an appeal of the decision of an IJ or the BIA to grant or to
16 deny a continuance in an immigration proceeding, and our review of such a decision is for abuse of
17 discretion. See Sanusi v. Gonzales, 445 F.3d 193, 198-99 (2d Cir. 2006) (per curiam). An IJ “may
18 grant a motion for a continuance for good cause shown.” 8 C.F.R. § 1003.29. It is not an abuse of
19 discretion for an IJ to deny a motion for a continuance based on a pending I-130 application when
20 the petitioner is ineligible for adjustment of status at the time of the continuance request and his
21 ultimate eligibility is “speculative at best.” Elbahja v. Keisler, 505 F.3d 125, 129 (2d Cir. 2007) (per
22 curiam); see also Morgan v. Gonzales, 445 F.3d 549, 552 (2d Cir. 2006). In this case, petitioner’s
23 husband was a lawful permanent resident of the United States, and the availability of a visa to
2
1 petitioner was therefore subject to numerical limitations. See 8 U.S.C. § 1153(a)(2). Because no
2 visa was “immediately available” to petitioner, she was ineligible for adjustment of status at the time
3 of the continuance request, see id. § 1255(a), and the IJ was justified in concluding that petitioner
4 was at “the first step in a long and discretionary process” in which the possibility that petitioner
5 would ultimately be eligible for adjustment was speculative. Elbahja, 505 F.3d at 129 (internal
6 quotation marks and alteration omitted). There was therefore no abuse of discretion in his denial
7 of the continuance request.
8 It is true that a successful naturalization application on the part of her husband would have
9 meant that petitioner would no longer be subject to numerical limitations on the availability of a
10 visa, see 8 U.S.C. § 1151(b)(2)(A)(i), but, apparently unbeknownst to the IJ, at the time of the IJ’s
11 October 2007 decision petitioner’s husband’s naturalization application had already been
12 denied — in April of 2006. A second application was subsequently denied in November 2008.
13 While petitioner invites us to remand this case to the BIA for it to reconsider its decision in light of
14 Matter of Hashmi, 24 I. & N. Dec. 785 (B.I.A. 2009), remand would be futile because we are
15 “confident that the [IJ],” now in possession of this information, “would reach the same result.”
16 Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 117 (2d Cir. 2007) (quoting Li Hua Lin v. U.S. Dep’t
17 of Justice, 453 F.3d 99, 107 (2d Cir. 2006)). Moreover, the denial of the first naturalization
18 application means that, contrary to petitioner’s contention, “bureaucratic delay” was not responsible
19 for petitioner being ineligible for adjustment of status at the time she made her motion for a
20 continuance, Petitioner’s Br. at 12, and petitioner therefore cannot make out a due process claim.
21 Nothing else in the record suggests that petitioner “was denied a full and fair opportunity to present
22 [her] claims” or that “the IJ or BIA otherwise deprived [her] of fundamental fairness.” Morgan, 445
23 F.3d at 552 (internal quotation marks omitted).
3
1 We have considered petitioner’s remaining arguments and we conclude that they are without
2 merit. For the foregoing reasons, the petition for review is DENIED. As we have completed our
3 review, any stay of removal that the Court previously granted in this petition is VACATED, and any
4 pending motion for a stay of removal in this petition is DISMISSED AS MOOT. Any pending
5 request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate
6 Procedure 34(a)(2) and Second Circuit Local Rule 34.1(b).
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
9
4