Polanco v. Holder , 432 F. App'x 33 ( 2011 )

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.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 VIRGILIO POLANCO,
14 Petitioner,
15
16 -v.- 10-1822-ag
17
18 ERIC H. HOLDER, Jr.,
19 Respondent.
20 - - - - - - - - - - - - - - - - - - - -X
21
22 FOR PETITIONER: Albania C. Almanzar, Albania C. Almanzar,
23 P.C., New York, New York.
24
25 FOR RESPONDENT: John J. Inkeles, Trial Attorney (Francis
26 W. Fraser, Senior Litigation Counsel,
27 Carl H. McIntyre, Jr., Assistant
28 Director, on the brief), for Tony West,
29 Assistant Attorney General, Office of
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 of
10 an April 13, 2010 order of the Board of Immigration Appeals
11 (“BIA”) dismissing Polanco’s appeal from an April 24, 2009
12 decision of Immigration Judge (“IJ”) Alan Vomacka:
13 (1) denying Polanco’s application for waiver of removability
14 under § 212(c) of the Immigration and Nationality Act
15 (“INA”), 8 U.S.C. § 1182; (2) denying Polanco’s motion for a
16 continuance to give Polanco more time to seek an adjustment
17 of status; and (3) ordering Polanco removed to the Dominican
18 Republic. We assume the parties’ familiarity with the
19 underlying facts, the procedural history, and the issues
20 presented for review.
21
22 We have jurisdiction to review final orders of removal
23 pursuant to 8 U.S.C. § 1252(a)(1). However, we lack
24 “jurisdiction to review any final order of removal against
25 an alien who is removable by reason of having committed a
26 criminal offense covered in section [1227(a)(2)(A)(iii)
27 (aggravated felony) or section 1227(a)(2)(C) (unlawful
28 possession of a firearm)].” 8 U.S.C. § 1252(a)(2)(C).
29 Notwithstanding this jurisdictional bar, we would have
30 jurisdiction to review “constitutional claims or questions
31 of law.” 8 U.S.C. § 1252(a)(2)(D).
32
33 Polanco raises no argument with respect to the
34 determination that he is removable as an aggravated felon
35 and as a felon convicted of a firearm offense. Any such
36 challenge is deemed abandoned. See Yueqing Zhang v.
37 Gonzales, 426 F.3d 540, 541 n.1 (2d Cir. 2005); see also
38 Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998)
39 (“Issues not sufficiently argued in the briefs are
40 considered waived and normally will not be addressed on
41 appeal.”).
42
43 The only issue briefed by Polanco in this Court is
44 whether the IJ abused his discretion in denying Polanco’s
2
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 or
10 (2) [his] decision--though not necessarily the product of a
11 legal error or a clearly erroneous factual finding--cannot
12 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 for
15 Polanco to avoid the jurisdictional bar of § 1252(a)(2)(C)
16 is if the IJ’s decision rested on a legal error.
17
18 Although the IJ acknowledged that he may have had the
19 authority to delay Polanco’s removal proceeding for a brief
20 period in order for Polanco’s wife to obtain citizenship and
21 to file an I-130 visa petition on Polanco’s behalf, A 56, he
22 was unaware of any “rule from the [BIA] and also recognized
23 and generally accepted by the higher courts” that would
24 permit him to delay the proceeding for more than a year to
25 give Polanco’s wife more time to obtain citizenship. A 56.
26 In Drax v. Reno, this Court acknowledged that an immigration
27 judge “has broad discretion to adjourn proceedings in order
28 to enable an alien to file the necessary paperwork to seek
29 various kinds of relief,” and indeed observed that a
30 “willing” IJ could grant a fifteen-month continuance. 338
31 F.3d 98, 117 & n.25 (2d Cir. 2003); see also Freire v.
32 Holder, 647 F.3d 67, 70 (2d Cir. 2011) (holding that
33 “Immigration Judges have broad discretionary authority to
34 grant a motion for continuance for good cause shown”
35 (internal quotation marks omitted)).
36
37 In view of our observation in Drax, we remand to the
38 BIA for it to determine whether the IJ had discretion, in
39 the circumstances of this case, to grant a continuance. See
40 Matter of Hashmi, 24 I. & N. Dec. 785, 790-91 (B.I.A. 2009)
41 (articulating standards for determining a motion for
42 continuance). If so, the BIA will remand for the IJ to
43 decide if he would have exercised such discretion.
44
3
1 For the foregoing reasons, the petition for review is
2 GRANTED and the case is REMANDED to the BIA.
3
4
5 FOR THE COURT:
6 CATHERINE O’HAGAN WOLFE, CLERK
7
8
9
4