Lopez-Cabrera v. Garland ( 2021 )

20-2954-ag
Lopez-Cabrera v. Garland
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 TO 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 for the Second Circuit,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
3 City of New York, on the 3rd day of November, two thousand twenty-one.
4
5 PRESENT:
6 REENA RAGGI,
7 GERARD E. LYNCH,
8 RAYMOND J. LOHIER, JR.,
9 Circuit Judges.
10 _____________________________________
11
12 GONZALO LOPEZ-CABRERA,
13 Petitioner,
14
15 v. 20-2954-ag
16
17 MERRICK B. GARLAND, UNITED
18 STATES ATTORNEY GENERAL,
19 Respondent.
20 _____________________________________
21
22 FOR PETITIONER: Stephen K. Tills, Esq., Orchard Park, NY
23
24
1 FOR RESPONDENT: Brian Boynton, Acting Assistant Attorney
2 General, Claire L. Workman, Senior Litigation
3 Counsel, Scott M. Marconda, Trial Attorney,
4 Office of Immigration Litigation, United
5 States Department of Justice, Washington, DC
6 UPON DUE CONSIDERATION of this petition for review of a Board of
7 Immigration Appeals (BIA) decision, it is hereby ORDERED, ADJUDGED, AND
8 DECREED that the petition for review is DENIED.
9 Petitioner Gonzalo Lopez-Cabrera, a citizen of Mexico, asks us to review an
10 August 5, 2020 decision of the BIA affirming a September 5, 2018 decision of an
11 Immigration Judge (IJ), which denied his motions to terminate or continue his
12 proceedings and ordered his removal. In re Lopez-Cabrera, No. A 206 864 611
13 (B.I.A. Aug. 5, 2020), aff’g No. A 206 864 611 (Immig. Ct. Buffalo Sept. 5, 2018). In
14 this petition, Lopez-Cabrera challenges both the agency’s denial of his motion to
15 terminate and its refusal to grant a continuance of his proceedings. We assume
16 the parties’ familiarity with the underlying facts and the record of prior
17 proceedings, to which we refer only as necessary to explain our decision to deny
18 the petition.
19 I.
20 Lopez-Cabrera principally contends that the agency erred in denying his
2
1 request for termination of proceedings in light of Pereira v. Sessions, 138 S. Ct.
2 2105 (2018). In Pereira, the Supreme Court held that the Immigration and
3 Nationality Act unambiguously requires that a notice to appear (NTA) include a
4 hearing time and place in order to trigger the “stop-time rule.” Id. at 2113–20.
5 “Under that rule, any period of . . . continuous physical presence in the United
6 States shall be deemed to end . . . when the alien is served a notice to appear under
7 section 1229(a)” of the Act. Id. at 2110 (omissions in original) (quotation marks
8 omitted). The rule thus cuts off a noncitizen’s accrual of physical presence or
9 residence for the purpose of qualifying for cancellation of removal. See 8 U.S.C.
10 §§ 1229b(a), (b), (d)(1).
11 Contrary to Lopez-Cabrera’s argument, Pereira addressed only a narrow
12 question regarding the stop-time rule and did not purport to “void jurisdiction in
13 cases in which an NTA omits a hearing time or place.” Banegas Gomez v. Barr,
14 922 F.3d 101, 110 (2d Cir. 2019) (emphasis in original). It is true that one
15 component of an NTA is the time and place of removal proceedings. See 8 U.S.C.
16 § 1229(a)(1)(G)(i). But as we explained in Banegas Gomez, the regulation vesting
17 the IJ with jurisdiction over an underlying immigration proceeding, 8 C.F.R. §
18 1003.14, does not itself require that an NTA specify the time and date of the initial
3
1 hearing, “at least so long as a notice of hearing specifying this information is later
2 sent to the alien.” Banegas Gomez, 922 F.3d at 112.
3 In this case, Lopez-Cabrera’s NTA did not provide a date or time, but it is
4 undisputed that he received subsequent hearing notices with the date and time
5 information and appeared at his hearings. The Supreme Court’s more recent
6 decision in Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), does not support Lopez-
7 Cabrera’s argument that the date and time information must be contained in the
8 same document in order for jurisdiction to attach. As we recently explained in
9 Chery v. Garland, No. 18-1036, 2021 WL 4805217 (2d Cir. Oct. 15, 2021), Niz-
10 Chavez, like Pereira before it, addressed only “the stop-time rule in 8 U.S.C. §
11 1229b(d)(1) and . . . not . . . the effect of a defective NTA on an IJ’s jurisdiction.”
12 Chery, 2021 WL 4805217, at *5; see also Niz-Chavez, 141 S. Ct. at 1480–86; Banegas
13 Gomez, 922 F.3d at 111. Our decision in Chery thus squarely rejected the
14 argument based on Niz-Chavez that Lopez-Cabrera advances here.
15 II.
16 We also reject Lopez-Cabrera’s argument that the agency abused its
17 discretion when it denied his request for a second continuance to permit him to
18 consider applying for relief from removal. See Morgan v. Gonzales, 445 F.3d 549,
4
1 551–52 (2d Cir. 2006). Lopez-Cabrera had previously received a continuance that
2 postponed the proceedings for almost a year. After the proceedings were set to
3 resume, Lopez-Cabrera asked the IJ for “one final continuance” to “consider an
4 application for asylum.” Certified Administrative Record (“CAR”) at 72, 75. In
5 support of that request and to explain a possible asylum application, Lopez-
6 Cabrera cited his fear of returning to Mexico because of the “economic situation”
7 and crime. But neither economic hardship nor generalized violence can form the
8 basis for a successful asylum claim. See 8 U.S.C. 1158(b)(1)(B)(i); Melgar de
9 Torres v. Reno, 191 F.3d 307, 314 (2d Cir. 1999). And Lopez-Cabrera was unable
10 to point to any other non-speculative basis for a possible asylum application or to
11 any evidence that he might obtain to support such an application. We therefore
12 agree with the agency that Lopez-Cabrera failed to show any “good cause” that
13 might have justified a further continuance. 8 C.F.R. § 1003.29; see Sanusi v.
14 Gonzales, 445 F.3d 193, 199–200 (2d Cir. 2006).
15 For the foregoing reasons, the petition for review is DENIED. All pending
16 motions and applications are also DENIED and stays VACATED.
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk of Court
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