17-4158
    Sotamba v. Barr
                                                                                    BIA
                                                                               Straus, IJ
                                                                           A208 484 626

                           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 9th
    day of July, two thousand nineteen.

    PRESENT:
              DENNIS JACOBS,
              DEBRA ANN LIVINGSTON,
              JOSEPH F. BIANCO,
                   Circuit Judges.
    _____________________________________

    WILSON F. SOTAMBA, AKA OSCAR
    CRIOLLO-VAZQUES,
              Petitioner,

                      v.                                         17-4158

    WILLIAM P. BARR, UNITED STATES
    ATTORNEY GENERAL,
              Respondent.
    _____________________________________

    FOR PETITIONER:                   Kevin R. Murphy, Law Office of Kevin
                                      R. Murphy, Springfield, MA.

    FOR RESPONDENT:                   Andrea N. Gevas, Trial Attorney
                                      (Joseph H. Hunt, Assistant Attorney
                                      General, John S. Hogan, Assistant
                                      Director, on the brief), Office of
                                      Immigration Litigation, United States
                               Department    of     Justice,   Washington,
                               DC.

     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 Wilson F. Sotamba, a native and citizen of Ecuador,

seeks review of a December 6, 2017 decision of the BIA dismissing

his appeal of a February 28, 2017 decision of an Immigration Judge

(“IJ”)   ordering   his   removal   and   denying    his   request   for   a

continuance.    In re Wilson F. Sotamba, No. A 208 484 626 (BIA Dec.

6, 2017), aff’g No. A 208 484 626 (Immig. Ct. Hartford Feb. 28,

2017).   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 BIA’s decisions “for the sake of completeness.”

Wangchuck v. Dep’t of Homeland Sec., 

, 528 (2d Cir.

2006).    We review the denial of a continuance for abuse of

discretion.    See Sanusi v. Gonzales, 

, 199 (2d Cir.

2006).   An IJ “may grant a motion for continuance for good cause

shown,” 8 C.F.R. § 1003.29, and is “accorded wide latitude in

calendar management,” Morgan v. Gonzales, 

, 551 (2d

Cir. 2006).    The denial of a continuance is an abuse of discretion,

however, if the IJ’s “decision rests on an error of law (such as

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application of the wrong legal principle) or a clearly erroneous

factual finding[,] or . . . cannot be located within the range of

permissible decisions.”    

(internal quotation marks

omitted).   To successfully challenge the denial of a continuance

to apply for relief, an “alien [must] establish[] that that denial

caused him actual prejudice and harm and materially affected the

outcome of his case.”   Matter of Sibrun, 18 I. & N. Dec. 354, 356-

57 (BIA 1983).

     The IJ did not abuse his discretion in denying a continuance

here.   Sotamba sought a continuance in order to apply for an

employment-based immigrant visa, but at the time the challenged

denial took place he had not yet satisfied an initial step in the

process by applying for labor certification with the Department of

Labor (“DOL”).   We have held “that it does not constitute an abuse

of discretion for an IJ to decline to continue a removal proceeding

in order to permit adjudication of a removable alien’s pending

labor certification” in part because that is the “first step in

[a] long and discretionary process.”   Elbahja v. Keisler, 

, 129 (2d Cir. 2007) (internal quotation marks omitted).     As

Sotamba was at an even earlier stage of the process, we find no

abuse of discretion in the IJ’s decision to deny the request for

a continuance.   See 

as the agency concluded, any relief was wholly

speculative.     First,      DOL       needed   to     approve     the   labor

certification.        8   U.S.C.    §§ 1182(a)(5)(A)(i),     1153(b)(3)(C).

Second, Sotamba’s employer would then need to file an immigrant

petition for alien worker with U.S. Citizenship and Immigration

Services (“USCIS”).        

Matter of Rajah, 25 I.

& N. Dec. 127, 131 (BIA 2009).          Third, Sotamba’s proceedings would

need to be administratively closed for him to seek a provisional

unlawful presence waiver.         See 8 C.F.R. § 212.7(e)(4)(iii) (noting

that an alien is ineligible for a waiver unless removal proceedings

are administratively closed).1          Fourth, USCIS would have to grant

a provisional waiver.         

(“USCIS has exclusive

jurisdiction     to       grant    a     provisional    unlawful     presence




1 BIA precedent allowed for administrative closure “to temporarily
remove a case from an [IJ’s] active calendar . . . to await an
action or event that is relevant to immigration proceedings but is
outside the control of the parties or the court and may not occur
for a significant or undetermined period of time.”       Matter of
Avetisyan, 25 I. & N. Dec. 688, 692 (BIA 2012). However, that
precedent was overruled by an opinion of the United States Attorney
General following the IJ and BIA’s decisions in Sotamba’s case.
See Matter of Castro-Tum, 27 I. & N. Dec. 271, 275 (AG 2018)
(noting that no regulations issued regarding administrative
closure “delegated general authority to authorize administrative
closure” by IJs or the BIA).       Nevertheless, as noted below,
Sotamba’s likely inability to qualify for a provisional waiver,
even if his case was administratively closed, obviates any need
for us to consider this change in the law as it might apply to
Sotamba’s case.
                                        4
waiver . . . .”).

     Even assuming a favorable exercise of discretion at steps one

through three, Sotamba was ineligible at step four because he did

not have a qualifying relative.    See Matter of Hashmi, 24 I. & N.

Dec. 785, 790 (BIA 2009) (“[T]he focus of the inquiry [of whether

to continue proceedings] is the apparent ultimate likelihood of

success on the . . . application.”).    A provisional waiver requires

a showing of hardship to a qualifying relative, which is limited

to a U.S. citizen or lawful permanent resident spouse or parent.

See 8 U.S.C. § 1182(a)(9)(B)(v).       Sotamba’s wife was not a U.S.

citizen or lawful permanent resident.      And as the BIA noted, her

own lack of a qualifying relative to obtain a waiver made it

unlikely that her status would have changed any time soon.2

     For the foregoing reasons, the petition for review is DENIED.

                         FOR THE COURT:
                         Catherine O’Hagan Wolfe, Clerk of Court




2 Although Sotamba repeatedly refers in his brief to the fact that
his wife “will successfully complete her own consulate process
abroad after continuing with the . . . provisional waiver process,”
Pet. Br. 10, he never refutes the BIA’s contention that his wife
also lacks a qualifying relative, as would be needed for her to
obtain such a waiver.
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