Campos Tito v. Holder , 428 F. App'x 108 ( 2011 )

10-2428-ag
Campos Tito v. Holder
BIA
Straus, IJ
A076 520 796
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 6th day of July, two thousand eleven.
5
6 PRESENT:
7 PETER W. HALL,
8 GERARD E. LYNCH,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 MIGUEL ANTONIO CAMPOS TITO,
14 Petitioner,
15
16 v. 10-2428-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Elyssa N. Williams, Formica, P.C.,
24 New Haven, Connecticut.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Melissa Neiman-Kelting,
28 Senior Litigation Counsel; Stefanie
29 Notarino Hennes, Trial Attorney,
1 Office of Immigration Litigation,
2 United States Department of Justice,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED, that the petition for review
8 is DENIED.
9 Miguel Antonio Campos Tito, a native and citizen of
10 Peru, seeks review of a May 20, 2010, order of the BIA,
11 affirming the June 6, 2008, decision of Immigration Judge
12 (“IJ”) Michael W. Straus, denying his motion for a
13 continuance to allow him to pursue adjustment of status and
14 ordering him removed. In re Campos Tito, No. A076 520 796
15 (B.I.A. May 20, 2010), aff’g No. A076 520 796 (Immig. Ct.
16 Hartford June 6, 2008). We assume the parties’ familiarity
17 with the underlying facts and procedural history in this
18 case.
19 Under the circumstances of this case, we review only
20 the decision of the BIA. See Yan Chen v. Gonzales, 417 F.3d
21 268, 271 (2d Cir. 2005). We review the BIA’s affirmance of
22 an IJ’s decision to deny a motion for a continuance for
23 abuse of discretion. See Sanusi v. Gonzales, 445 F.3d 193,
24 199 (2d Cir. 2006).
25
2
1 The regulations provide that an IJ “may grant a motion
2 for continuance for good cause shown.” 8 C.F.R. § 1003.29.
3 Here, Campos Tito sought a continuance before the IJ to
4 pursue his application for adjustment of status. The agency
5 found that a continuance was not warranted because Campos
6 Tito did not have an offer of employment that would support
7 adjustment of status, as his former employer was no longer
8 willing to employ him under the terms of the labor
9 certification. The agency did not err in according
10 significant weight to the fact that Campos Tito did not
11 present a viable employment offer in denying his motion, as
12 it has explained that “the focus of the inquiry is the
13 likelihood of success on the adjustment application.”
14 Matter of Rajah, 25 I. & N. Dec. 127, 136 (B.I.A. 2009).
15 Campos Tito argues that the BIA’s standards in Matter
16 of Rajah are not applicable to his case because, unlike the
17 alien in that case, he has an approved I-140 Petition.
18 However, because Campos Tito’s approved I-140 Petition would
19 not render him eligible to adjust status as he no longer had
20 an offer of employment, his situation is sufficiently
21 analogous to Matter of Rajah, 25 I. & N. Dec. at 135-36,
22 that the Board’s reliance on that decision was not error.
3
1 Campos Tito further argues that his case warrants a
2 favorable exercise of discretion because his employer
3 withdrew the offer of employment without warning on the eve
4 of his hearing. However, there is no indication that the
5 BIA overlooked the positive equities in his case, and the
6 presence of such equities does not require the conclusion
7 that the BIA abused its discretion in upholding the IJ’s
8 denial of a continuance. See id.; see also Xiao Ji Chen v.
9 U.S. Dep’t of Justice, 471 F.3d 315, 336 n.17 (the Court
10 will presume that the agency has taken account of all the
11 evidence before it “unless the record compellingly suggests
12 otherwise”).
13 Campos Tito further argues that remand is required
14 because the IJ erred in finding that he would not have
15 jurisdiction to determine whether a new employer would
16 qualify as a substitute under 8 U.S.C. § 1154(j). Cf.
17 Freire v. Holder, __ F.3d ___, 2011 WL 2090820, at *3 (2d
18 Cir. May 27, 2011) (holding that BIA has authority to grant
19 continuance even where it lacks jurisdiction to adjust
20 alien’s status). This issue is irrelevant, however, because
21 the BIA recognized that the IJ’s statement with respect to
22 his jurisdiction was incorrect under its intervening
4
1 decision in Matter of Marcal Neto, 25 I. & N. Dec. 169, 173
2 (B.I.A. 2010), but still agreed with the IJ’s decision not
3 to grant a continuance for other reasons. See Yan Chen, 417
4 F.3d at 271 (we review only the decision of the BIA when it
5 disagrees with the IJ).
6 Finally, Campos Tito argues that the BIA should have
7 remanded his case to the IJ for further factual findings,
8 rather than “assuming” that he had no substitute employer.
9 However, Campos Tito did not assert before the BIA, and
10 likewise does not assert before this Court, that he has a
11 new qualifying offer of employment. Accordingly, the BIA
12 did not err in noting that Campos Tito had not shown that he
13 has a qualifying offer of employment, and in upholding the
14 IJ’s denial of a continuance. See Matter of Rajah, 25 I. &
15 N. Dec. at 136.
16 For the foregoing reasons, the petition for review is
17 DENIED. As we have completed our review, any stay of
18 removal that the Court previously granted in this petition
19 is VACATED, and any pending motion for a stay of removal in
20 this petition is DISMISSED as moot.
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe, Clerk
23
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