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SALTO v. HOLDER, 11-120-ag-NAC. (2011)

Court: Court of Appeals for the Second Circuit Number: infco20111129174 Visitors: 9
Filed: Nov. 29, 2011
Latest Update: Nov. 29, 2011
Summary: SUMMARY ORDER 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. Petitioners, natives and citizens of Ecuador, seek review of a December, 16, 2010, order of the BIA, affirming the February 27, 2009, decision of an Immigration Judge ("IJ") which denied their request for a continuance and ordered them removed. In re Salto, Nos. A099 358 092/093/094 (B.I.
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SUMMARY ORDER

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.

Petitioners, natives and citizens of Ecuador, seek review of a December, 16, 2010, order of the BIA, affirming the February 27, 2009, decision of an Immigration Judge ("IJ") which denied their request for a continuance and ordered them removed. In re Salto, Nos. A099 358 092/093/094 (B.I.A. Dec. 16, 2010), aff'g Nos. A099 358 092/093/094 (Immig. Ct. N.Y. City Feb. 27, 2009). We assume the parties' familiarity with the underlying facts and procedural history in this case.

Under the circumstances of this case, we have reviewed both the IJ's and the BIA's opinions "for the sake of completeness." Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008) (internal quotation marks omitted). We review the agency's denial of a continuance for abuse of discretion. See Sanusi v. Gonzales, 445 F.3d 193, 199 (2d Cir. 2006); Singh v. U.S. Dep't of Homeland Sec., 526 F.3d 72, 80-81 (2d Cir. 2008).

The regulations provide that an IJ "may grant a motion for continuance for good cause shown." 8 C.F.R. § 1003.29. Although the regulations do not define what may constitute "good cause," we accord deference to the BIA's interpretations of its own regulations "unless plainly erroneous or inconsistent with the regulation." Perriello v. Napolitano, 579 F.3d 135, 138 (2d Cir. 2009) (citing Auer v. Robbins, 519 U.S. 452, 461 (1997)).

Here, the BIA correctly observed that U.S. Citizenship and Immigration Services ("USCIS") had considered and denied the lead Petitioner's original I-140 visa petition, his motion to reopen and reconsider, and his administrative appeal. Moreover, the IJ noted the lead Petitioner's concession, through counsel, that he did not have evidence of his employer's ability to pay, which was the basis for USCIS's denial of the I-140 visa petition. In light of these facts, the IJ did not abuse his discretion in denying Petitioners' request for a continuance. See Pedreros v. Keisler, 503 F.3d 162, 165 (2d Cir. 2007); Morgan v. Gonzales, 445 F.3d 549, 552 (2d Cir. 2006).

Petitioners argue that their right to due process was violated because U.S. Immigration and Customs Enforcement ("ICE") received the USCIS's December 2008 decision denying the visa petition before they did, and was able to "spring" it upon them at their December 2008 hearing. As the Government counters, however, at the December 2008 hearing the IJ in fact granted Petitioners a two-month continuance. Likewise, although Petitioners assert that the IJ was "not wholly neutral," they provide no support for this allegation, other than the fact that the IJ ultimately denied their request for a continuance. In sum, because there is no indication that Petitioners were denied a "`full and fair opportunity to present [their] claims,'" their due process argument is without basis. Morgan, 445 F.3d at 552 (quoting Xiao Ji Chen v. U.S. Dep't of Justice, 434 F.3d 144, 155 (2d Cir. 2006)).

Conclusion

For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

Source:  Leagle

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