Charles v. Holder , 572 F. App'x 56 ( 2014 )

12-4472
Charles v.Holder
BIA
A041 603 922
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 16th day of July, two thousand fourteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 PIERRE N. LEVAL,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 KELLY ANN JEANETTE CHARLES, AKA
14 KELLYANN J. CHARLES, AKA KELLY A.
15 CHARLES, AKA KELLY-ANN CHARLES,
16 Petitioner,
17
18 v. 12-4472
19 NAC
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 _____________________________________
24
25 FOR PETITIONER: Anna Marie Gallagher, Maggio-Kattar,
26 P.C., Washington, D.C.
27
28 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
29 General; Cindy S. Ferrier, Assistant
30 Director; Matt A. Crapo, Trial
31 Attorney, Office of Immigration
32 Litigation, United States Department
33 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DISMISSED as moot.
5 Petitioner Kelly Ann Jeanette Charles, a native and
6 citizen of Trinidad and Tobago, seeks review of an October
7 15, 2012 order of the BIA, which denied her motion for
8 reconsideration and a continuance. In re Kelly Ann Jeanette
9 Charles, No. A041 603 922 (B.I.A. Oct. 15, 2012). We assume
10 the parties’ familiarity with the underlying facts and
11 procedural history in this case.
12 We review the BIA’s denial of reconsideration and a
13 continuance for abuse of discretion. See Jin Ming Liu v.
14 Gonzales, 439 F.3d 109, 111 (2d Cir. 2006); Sanusi v.
15 Gonzales, 445 F.3d 193, 199 (2d Cir. 2006). Charles did not
16 timely petition for review of the BIA’s July 2012 decision,
17 which found her ineligible for a waiver of inadmissibility
18 under Immigration and Nationality Act (“INA”) § 212(h) for
19 having been convicted of an aggravated felony. Accordingly,
20 her challenges to those findings are not properly before the
21 Court. See Jin Ming Liu, 439 F.3d at 111 (noting that the
22 Court is “‘precluded from passing on the merits of the
23 underlying [] proceedings’” in a petition for review from
2
1 the denial of a motion to reconsider) (quoting Kaur v. BIA,
2 413 F.3d 232, 233 (2d Cir. 2005)); see also Stone v. INS,
3 514 U.S. 386, 405 (1995) (requiring separate timely
4 petitions for review from final removal order and denial of
5 a motion to reconsider or reopen).
6 Charles’s challenge to the denial of a continuance is
7 moot because she requested the continuance to await a
8 decision in Chaidez v. United States, --- U.S. ---, 133 S.
9 Ct. 1103 (2013), which has since been issued. “To qualify
10 as a case fit for federal-court adjudication, ‘an actual
11 controversy must be extant at all stages of review, not
12 merely at the time the complaint is filed’.” Arizonans for
13 Official English v. Arizona, 520 U.S. 43, 67 (1997) (quoting
14 Preiser v. Newkirk, 422 U.S. 395, 401 (1975)). “[I]f an
15 event occurs while a case is pending on appeal that makes it
16 impossible for the court to grant ‘any effectual relief
17 whatever’ to a prevailing party, the appeal must be
18 dismissed.” Church of Scientology of Cal. v. United States,
19 506 U.S. 9, 12 (1992) (quoting Mills v. Green, 159 U.S. 651,
20 653 (1895)). Charles argues that her petition is not moot
21 because she continues to explore the possibility of
22 post-conviction relief; but the only ground she urged for
3
1 holding her case in abeyance was the decision in Chaidez.
2 For the foregoing reasons, the petition for review is
3 DISMISSED. As we have completed our review, any stay of
4 removal that the Court previously granted in this petition
5 is VACATED, and any pending motion for a stay of removal in
6 this petition is DISMISSED as moot. Any pending request for
7 oral argument in this petition is DENIED in accordance with
8 Federal Rule of Appellate Procedure 34(a)(2), and Second
9 Circuit Local Rule 34.1(b).
10 FOR THE COURT:
11 Catherine O’Hagan Wolfe, Clerk
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