Roberto Colmenero-Loredo v. Jefferson Sessions, II

Case: 16-60707 Document: 00514262263 Page: 1 Date Filed: 12/06/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-60707
Fifth Circuit
FILED
Summary Calendar December 6, 2017
Lyle W. Cayce
ROBERTO COLMENERO-LOREDO, Clerk
Petitioner
v.
JEFFERSON B. SESSIONS, III, U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A205 831 269
Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *
Roberto Colmenero-Loredo, a native and citizen of Mexico, has petitioned
for review of the decision of the Board of Immigration Appeals (BIA) dismissing
his appeal from the decision of the immigration judge (IJ) finding him ineligible
for cancellation of removal, denying his motion for a continuance, and ordering
his removal to Mexico. Colmenero-Loredo has not challenged the agency’s
determination that he was statutorily ineligible for cancellation of removal on
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 16-60707
account of his prior Texas conviction of possession of cocaine. See 8 U.S.C.
§ 1229b(b)(1)(C). He has therefore abandoned the issue. See Soadjede v.
Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003).
The Government contends that, pursuant to 8 U.S.C. § 1252(a)(2)(C), we
lack jurisdiction to consider Colmenero-Loredo’s challenge to the denial of his
motion for a continuance. We pretermit the jurisdictional question because the
continuance issue lacks merit. See Madriz-Alvarado v. Ashcroft, 383 F.3d 321,
327-28 (5th Cir. 2004).
During proceedings before the IJ, Colmenero-Loredo moved for a
continuance, indicating that he wanted to look into the possibility of
challenging his prior Texas conviction of possession of cocaine. The IJ denied
his request. Colmenero-Loredo argues that the IJ abused his discretion in
denying his request for a continuance because the Government’s attorney did
not oppose it.
The grant of a motion to continue “lies within the sound discretion of the
IJ, who may grant a continuance for good cause shown.” Masih v. Mukasey,
536 F.3d 370, 373 (5th Cir. 2008). This court reviews “a decision to grant or
deny a continuance for an abuse of discretion.” Id. An abuse of discretion
occurs only if the agency’s decision is “capricious, racially invidious, utterly
without foundation in the evidence, or otherwise so aberrational that it is
arbitrary rather than the result of any perceptible rational approach.” Cabral
v. Holder, 632 F.3d 886, 890 (5th Cir. 2011) (internal quotation marks and
citation omitted).
As we have noted, “post-conviction motions do not operate to negate the
finality of a conviction for deportation purposes, unless and until the conviction
is overturned pursuant to such motions.” Okabe v. Immigration
& Naturalization Serv., 671 F.2d 863, 865 (5th Cir. 1982). Here, the IJ
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properly concluded that Colmenero-Loredo’s prior conviction remained in effect
and that his success in a collateral challenge to the prior conviction was
speculative. See Cabral, 632 F.3d at 890. In view of the foregoing, the IJ did
not abuse his discretion in denying the requested continuance. See id.
PETITION FOR REVIEW DENIED.
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