2nd Circuit remands for ruling on continuances 9-26-11

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2nd Circuit remands for ruling on continuances 9-26-11

  1. 1. 10-1822-ag Polanco v. Holder 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 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 Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 26th day of September, two thousand eleven. 5 6 PRESENT: DENNIS JACOBS, 7 Chief Judge, 8 ROGER J. MINER, 9 ROBERT A. KATZMANN,10 Circuit Judges.1112 - - - - - - - - - - - - - - - - - - - -X13 VIRGILIO POLANCO,14 Petitioner,1516 -v.- 10-1822-ag1718 ERIC H. HOLDER, Jr.,19 Respondent.20 - - - - - - - - - - - - - - - - - - - -X2122 FOR PETITIONER: Albania C. Almanzar, Albania C. Almanzar,23 P.C., New York, New York.2425 FOR RESPONDENT: John J. Inkeles, Trial Attorney (Francis26 W. Fraser, Senior Litigation Counsel,27 Carl H. McIntyre, Jr., Assistant28 Director, on the brief), for Tony West,29 Assistant Attorney General, Office of
  2. 2. 1 Immigration Litigation, United States 2 Department of Justice, Washington, D.C. 3 4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 5 AND DECREED that the petition for review of a Board of 6 Immigration Appeals decision is GRANTED and the case is 7 REMANDED to the Board of Immigration Appeals. 8 9 Petitioner Virgilio Polanco (“Polanco”) seeks review of10 an April 13, 2010 order of the Board of Immigration Appeals11 (“BIA”) dismissing Polanco’s appeal from an April 24, 200912 decision of Immigration Judge (“IJ”) Alan Vomacka:13 (1) denying Polanco’s application for waiver of removability14 under § 212(c) of the Immigration and Nationality Act15 (“INA”), 8 U.S.C. § 1182; (2) denying Polanco’s motion for a16 continuance to give Polanco more time to seek an adjustment17 of status; and (3) ordering Polanco removed to the Dominican18 Republic. We assume the parties’ familiarity with the19 underlying facts, the procedural history, and the issues20 presented for review.2122 We have jurisdiction to review final orders of removal23 pursuant to 8 U.S.C. § 1252(a)(1). However, we lack24 “jurisdiction to review any final order of removal against25 an alien who is removable by reason of having committed a26 criminal offense covered in section [1227(a)(2)(A)(iii)27 (aggravated felony) or section 1227(a)(2)(C) (unlawful28 possession of a firearm)].” 8 U.S.C. § 1252(a)(2)(C).29 Notwithstanding this jurisdictional bar, we would have30 jurisdiction to review “constitutional claims or questions31 of law.” 8 U.S.C. § 1252(a)(2)(D).3233 Polanco raises no argument with respect to the34 determination that he is removable as an aggravated felon35 and as a felon convicted of a firearm offense. Any such36 challenge is deemed abandoned. See Yueqing Zhang v.37 Gonzales, 426 F.3d 540, 541 n.1 (2d Cir. 2005); see also38 Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998)39 (“Issues not sufficiently argued in the briefs are40 considered waived and normally will not be addressed on41 appeal.”).4243 The only issue briefed by Polanco in this Court is44 whether the IJ abused his discretion in denying Polanco’s 2
  3. 3. 1 motion for a continuance. See Sanusi v. Gonzales, 445 F.3d 2 193, 199 (2d Cir. 2006) (holding “that 8 U.S.C. 3 § 1252(a)(2)(B)(ii) does not deprive [this Court] of 4 jurisdiction to review decisions by IJs to grant or to deny 5 continuances” and that we review an IJ’s grant or denial of 6 a continuance for abuse of discretion). An IJ abuses his 7 discretion in denying a continuance if “(1) [his] decision 8 rests on an error of law (such as application of the wrong 9 legal principle) or a clearly erroneous factual finding or10 (2) [his] decision--though not necessarily the product of a11 legal error or a clearly erroneous factual finding--cannot12 be located within the range of permissible decisions.”13 Zervos v. Verizon New York, Inc., 252 F.3d 163, 169 (2d Cir.14 2001) (footnote omitted). Therefore, the only way for15 Polanco to avoid the jurisdictional bar of § 1252(a)(2)(C)16 is if the IJ’s decision rested on a legal error.1718 Although the IJ acknowledged that he may have had the19 authority to delay Polanco’s removal proceeding for a brief20 period in order for Polanco’s wife to obtain citizenship and21 to file an I-130 visa petition on Polanco’s behalf, A 56, he22 was unaware of any “rule from the [BIA] and also recognized23 and generally accepted by the higher courts” that would24 permit him to delay the proceeding for more than a year to25 give Polanco’s wife more time to obtain citizenship. A 56.26 In Drax v. Reno, this Court acknowledged that an immigration27 judge “has broad discretion to adjourn proceedings in order28 to enable an alien to file the necessary paperwork to seek29 various kinds of relief,” and indeed observed that a30 “willing” IJ could grant a fifteen-month continuance. 33831 F.3d 98, 117 & n.25 (2d Cir. 2003); see also Freire v.32 Holder, 647 F.3d 67, 70 (2d Cir. 2011) (holding that33 “Immigration Judges have broad discretionary authority to34 grant a motion for continuance for good cause shown”35 (internal quotation marks omitted)).3637 In view of our observation in Drax, we remand to the38 BIA for it to determine whether the IJ had discretion, in39 the circumstances of this case, to grant a continuance. See40 Matter of Hashmi, 24 I. & N. Dec. 785, 790-91 (B.I.A. 2009)41 (articulating standards for determining a motion for42 continuance). If so, the BIA will remand for the IJ to43 decide if he would have exercised such discretion.44 3
  4. 4. 1 For the foregoing reasons, the petition for review is2 GRANTED and the case is REMANDED to the BIA.345 FOR THE COURT:6 CATHERINE O’HAGAN WOLFE, CLERK789 4

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