Filed: Oct. 10, 2012
Latest Update: Mar. 26, 2017
Summary: 11-4855-ag Kedra v. Holder BIA Verrillo, IJ A089 032 359 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 TH
Summary: 11-4855-ag Kedra v. Holder BIA Verrillo, IJ A089 032 359 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..
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11-4855-ag
Kedra v. Holder
BIA
Verrillo, IJ
A089 032 359
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
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 10th day of October, two thousand twelve.
5
6 PRESENT:
7 JON O. NEWMAN,
8 GERARD E. LYNCH,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 Artur Jan Kedra,
14 Petitioner,
15
16 v. 11-4855-ag
17
18 Eric H. Holder, Jr., United States
19 Attorney General,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Artur Jan Kedra, pro se, New
24 Britain, CT.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General, William C.
28 Peachey, Assistant Director, Andrew
29 B. Insenga, Trial Attorney, Office
30 of Immigration Litigation, Civil
31 Division, United States Department
32 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 DENIED.
5 Artur Jan Kedra,1 a native and citizen of Poland, seeks
6 review of an October 25, 2011 decision of the BIA affirming
7 the December 17, 2009 decision of Immigration Judge (“IJ”)
8 Philip Verrillo, which denied his request for a continuance
9 and ordered him removed. In re Artur Jan Kedra, No. A089
10 032 359 (B.I.A. Oct. 25, 2011), aff’g No. A089 032 359
11 (Immig. Ct. Hartford Dec. 17, 2009). We assume the parties’
12 familiarity with the underlying facts and procedural history
13 in this case.
14 Where, as here, the BIA affirms an IJ’s decision
15 without opinion,2 we review only the IJ’s decision as the
1
Petitioner’s surname is alternately spelled “Kedra”
and “Kendra” throughout the administrative record. We use
“Kedra” in this Order, as this is the spelling Petitioner
used when he filed the instant Petition.
2
The BIA did not err or abuse its discretion by
granting summary affirmance. See Kambolli v. Gonzales, 449
F.3d 454, 463 (2d Cir. 2006) (providing that this Court
lacks authority to review the BIA’s decision to streamline a
particular case); Xusheng Shi v. BIA, 374 F.3d 64, 66 (2d
Cir. 2004) (holding that the BIA’s use of summary affirmance
does not constitute an abuse of discretion); Yu Sheng Zhang
v. U.S. Dep’t of Justice, 362 F.3d 155, 160 (2d Cir. 2004)
(holding that summary affirmance does not deprive an alien
of due process).
2
1 final agency determination. See Shunfu Li v. Mukasey, 529
2 F.3d 141, 146 (2d Cir. 2008). This Court reviews the denial
3 of a continuance for abuse of discretion. See Sanusi v.
4 Gonzales,
445 F.3d 193, 199 (2d Cir. 2006). An IJ abuses
5 his discretion in denying a continuance if: “(1) [his]
6 decision rests on an error of law (such as application of
7 the wrong legal principle) or a clearly erroneous factual
8 finding[;] or (2) [his] decision – though not necessarily
9 the product of a legal error or a clearly erroneous factual
10 finding – cannot be located within the range of permissible
11 decisions.” Morgan v. Gonzales,
445 F.3d 549, 551-52 (2d
12 Cir. 2006) (first and third alterations in original)
13 (internal quotation marks omitted).
14 An IJ may grant a motion for continuance “for good
15 cause shown.” 8 C.F.R. § 1003.29. Continuances are not
16 ordinarily granted based solely on a pending labor
17 certification in the absence of additional persuasive
18 factors. See Matter of Rajah, 25 I. & N. Dec. 127, 136-37
19 (B.I.A. 2009) (collecting cases); see also Elbahja v.
20 Keisler,
505 F.3d 125, 129 (2d Cir. 2007) (holding that,
21 where petitioner’s eligibility for adjustment of status was
22 “speculative,” it was not an abuse of discretion for IJ to
3
1 deny petitioner’s request for a continuance “in order to
2 permit adjudication of [petitioner’s] pending labor
3 certification”).
4 Here, the IJ did not abuse his discretion by denying a
5 continuance, as Kedra was not eligible for adjustment of
6 status. See 8 U.S.C. § 1255(c)(8) (stating that “any alien
7 [present in the United States] . . . who has otherwise
8 violated the terms of a nonimmigrant visa” is ineligible for
9 adjustment of status); Elbahja, 505 F.3d at 129.3
10 For the foregoing reasons, the petition for review is
11 DISMISSED.
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
14
15
3
Kedra’s reliance on Thapa v. Gonzales, 460 F.3d 323
(2d Cir. 2006), is unavailing. In Thapa, the petitioner
would have been eligible to remain in the United States if
his request for labor certification had been granted, id. at
335, whereas Kedra conceded that he would be ineligible for
adjustment of status whether or not his pending employment-
based petition was granted.
4
