Tairi v. Holder , 563 F. App'x 793 ( 2014 )

12-1946
Tairi v. Holder
BIA
Vomacka, IJ
A028 756 213
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 24th day of April, two thousand fourteen.
PRESENT:
JOSÉ A. CABRANES,
GERARD E. LYNCH,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
REMZI TAIRI,
Petitioner,
v. 12-1946
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Elyssa Williams, D. Wade Luckett,
Formica Williams, P.C., New Haven,
CT.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; Francis W. Fraser, Senior
Litigation Counsel; Gary J. Newkirk,
Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Remzi Tairi, a native and citizen of
Macedonia, seeks review of an April 25, 2012, order of the
BIA, which affirmed the January 12, 2010, decision of an
Immigration Judge (“IJ”), denying his motion for a
continuance. In re Remzi Tairi, No. A028 756 213 (B.I.A.
Apr. 25, 2012), aff'g No. A028 756 213 (Immig. Ct. New York
City Jan. 12, 2010). We assume the parties' familiarity
with the underlying facts and procedural history in this
case.
We review the IJ's decision as supplemented by the BIA.
See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
The applicable standards of review are well-established.
See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v.
Holder, 562 F.3d 510, 513 (2d Cir. 2009).
Because the agency acted reasonably in denying Tairi's
motion for a further continuance, Tairi's petition for
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review must be denied. Under the applicable immigration
regulations, an IJ may grant a motion for a continuance “for
good cause shown.” 8 C.F.R. § 1003.29 (2014). Given the
IJ's wide latitude in managing the immigration court’s busy
docket, we review a denial of a continuance motion under a
“highly deferential standard of abuse of discretion.”
Morgan v. Gonzales, 445 F.3d 549, 551 (2d Cir. 2006) (citing
Sanusi v. Gonzales, 445 F.3d 193, 199 (2d Cir. 2006)). An
IJ abuses his discretion only where: “(1) [his] decision
rests on an error of law (such as application of the wrong
legal principle) or a clearly erroneous factual finding or
(2) [his] decision-though not necessarily the product of a
legal error or a clearly erroneous factual finding-cannot be
located within the range of permissible decisions.” Id. at
551-52 (quoting Zervos v. Verizon New York, Inc., 252 F.3d
163, 169 (2d Cir. 2001)) (alterations in original).
The BIA has outlined a number of factors to guide an
IJ’s consideration of a continuance motion. In particular,
where a petitioner seeks a continuance to await the
adjudication of an adjustment application by U.S.
Citizenship and Immigration Services (“USCIS”), an IJ may
consider: “(1) the [Department of Homeland Security's]
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response to the motion; (2) whether the underlying visa
petition is prima facie approvable; (3) the respondent's
statutory eligibility for adjustment of status; (4) whether
the respondent's application for adjustment merits a
favorable exercise of discretion; and (5) the reason for the
continuance and other procedural factors.” Matter of
Hashmi, 24 I. & N. Dec. 785, 790 (BIA 2009). These factors
are “illustrative, not exclusive,” with “the focus of the
inquiry [on] the apparent ultimate likelihood of success on
the adjustment application.” Id.Tairi argues that the agency erred in denying his
request for a continuance without allowing him to present
evidence regarding his pending adjustment application. The
USCIS rejected Tairi’s initial adjustment application in May
2009. Thereafter, Tairi filed a second application that
remained pending upon the IJ’s consideration of Tairi’s
final continuance motion in January 2010. Because he was
unable to present evidence to the IJ regarding this latter
application, Tairi suggests that the IJ failed to consider
material differences between the applications before denying
Tairi’s request for a further continuance.
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Contrary to Tairi’s contentions, however, he had a
sufficient opportunity to present evidence to support his
final continuance motion. Most notably, upon learning of
Tairi’s second application, the IJ repeatedly inquired as to
the likelihood that this application would succeed where
Tairi’s first application failed.
Presented with no evidence to suggest that the agency
would grant Tairi’s second application, the IJ did not abuse
his discretion in denying Tairi’s final continuance motion.
See Garcia v. Holder, 536 F. App'x 147, 148 (2d Cir. 2013).
Although Tairi contends that the IJ neglected to consider
each Hashmi factor before denying his motion, this alone
does not constitute an abuse of discretion. Rojas v.
Holder, 458 F. App'x 46, 48 (2d Cir. 2012). Instead, Hashmi
simply “permit[s] the agency to consider other factors in
addition to the central inquiry as to the likelihood of
success on the adjustment application.” Id. Thus, having
determined that the USCIS was unlikely to grant Tairi’s
second application, the IJ did not abuse his discretion in
denying Tairi an additional continuance.
Nor does the record suggest that Tairi was denied a
full and fair opportunity to present his claims or that the
agency otherwise deprived him of fundamental fairness
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sufficient to support a due process claim. Maniowska v.
Holder, 381 F. App'x 109, 111 (2d Cir. 2010).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DENIED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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