Filed: Nov. 30, 2017
Latest Update: Mar. 03, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 17-1502 _ KLEVER ARMANDO PILATAXI TENEMAZA, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent _ On Petition for Review of a Decision and Order of the Board of Immigration Appeals (BIA No. A088-219-715) Immigration Judge: Annie S. Garcy _ Submitted under Third Circuit L.A.R. 34.1(a) October 26, 2017 BEFORE: GREENAWAY, JR., COWEN, Circuit Judges and PADOVA, District Judge* (Filed: November 30, 2017) _ OPI
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 17-1502 _ KLEVER ARMANDO PILATAXI TENEMAZA, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent _ On Petition for Review of a Decision and Order of the Board of Immigration Appeals (BIA No. A088-219-715) Immigration Judge: Annie S. Garcy _ Submitted under Third Circuit L.A.R. 34.1(a) October 26, 2017 BEFORE: GREENAWAY, JR., COWEN, Circuit Judges and PADOVA, District Judge* (Filed: November 30, 2017) _ OPIN..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 17-1502
______________
KLEVER ARMANDO PILATAXI TENEMAZA,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
______________
On Petition for Review of a Decision
and Order of the Board of Immigration Appeals
(BIA No. A088-219-715)
Immigration Judge: Annie S. Garcy
______________
Submitted under Third Circuit L.A.R. 34.1(a)
October 26, 2017
BEFORE: GREENAWAY, JR., COWEN, Circuit Judges
and PADOVA, District Judge*
(Filed: November 30, 2017)
______________
OPINION**
______________
*
The Honorable John R. Padova, Senior United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
**
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
COWEN, Circuit Judge.
Klever Armando Pilataxi Tenemaza petitions for review of a decision by the
Board of Immigration Appeals (“BIA”), which dismissed his appeal from an order of the
Immigration Judge (“IJ”) denying his motion for a continuance as well as his application
for cancellation of removal. We will dismiss the petition in part and deny it in part.
I.
Pilataxi Tenemaza, a native and citizen of Ecuador, entered the United States
without admission or inspection. Pilataxi Tenemaza (who was represented by counsel)
conceded the charge of removability. He also filed an application for cancellation of
removal, claiming that his United States citizen son would suffer exceptional and
extremely unusual hardship should his father be removed to Ecuador. On March 2, 2012,
the merits hearing was scheduled for March 3, 2014. The IJ told counsel to “make every
effort to get the majority of the evidence filed, say, a year ahead of time and then if you
need to supplement, no problem.” (AR86.)
At the merits hearing, Pilataxi Tenemaza asked for an adjournment in order to
obtain evidence. The IJ denied the motion in an interlocutory oral decision as well as her
subsequent written disposition. The IJ also denied the underlying application for
cancellation of removal.
The BIA dismissed Pilataxi Tenemaza’s administrative appeal. It specifically
agreed with the IJ that Pilataxi Tenemaza failed to demonstrate the good cause required
for a continuance. See, e.g., 8 C.F.R. §§ 1003.29, 1240.6. The BIA also affirmed the IJ’s
2
finding that Pilataxi Tenemaza did not show that his removal would result in exceptional
and extremely unusual hardship to his son.
Pilataxi Tenemaza submitted a “Petition for Review and Complaint for Injunctive
Relief and Declaratory Relief” (JA3 (emphasis omitted)) as well as a motion for a stay of
removal. The government moved to dismiss on jurisdictional grounds. This Court
denied the stay motion and referred the dismissal motion to the merits panel.
II.
We must dismiss the petition for review insofar as Pilataxi Tenemaza challenges
the agency’s disposition of his application for cancellation of removal. “We lack
jurisdiction to review discretionary decisions made pursuant to 8 U.S.C. § 1229b,
including ‘exceptional and extremely unusual’ hardship determinations.” Patel v.
Attorney General, 619 F.3d 230, 232 (3d Cir. 2010) (citing 8 U.S.C. § 1252(a)(2)(B)(i);
Mendez-Moranchel v. Ashcroft,
338 F.3d 176, 179 (3d Cir. 2003)). While we retain
jurisdiction over constitutional claims and questions of law, see, e.g., 8 U.S.C. §
1252(a)(2)(D);
Patel, 619 F.3d at 232, Pilataxi Tenemaza does not articulate any legal or
constitutional claims with respect to the application for cancellation of removal. Instead,
he contends that the agency abused its discretion and incorrectly found that his son would
not suffer exceptional and extremely unusual hardship. However, it is well established
that arguments that an IJ or the BIA incorrectly weighed or failed to consider the
3
evidence do not present constitutional claims or legal questions.1 See, e.g., Jarbough v.
Attorney General, 483 F.3d 184, 189 (3d Cir. 2007).
We next turn to Piltataxi Tenemaza’s challenge concerning the motion for
continuance.2 According to Pilataxi Tenemaza, the BIA abused its discretion and
infringed his due process rights by not allowing him a continuance to obtain evidence in
support of his cancellation application. As the BIA recognized, “[t]o establish good
cause based upon a request for an opportunity to obtain and present additional evidence,
the respondent must make a reasonable showing that the lack of preparation occurred
despite a diligent good faith effort to be ready to proceed and that the additional evidence
is ‘probative, noncumulative, and significantly favorable’ to him.” (AR3 (quoting
Sibrun, 18 I. & N. Dec. 354, 356 (BIA 1983)).) “Aliens are ‘entitled to a full and fair
hearing of [their] claims and a reasonable opportunity to present evidence,’” but, in order
to prevail on a due process claim, the alien must establish substantial prejudice. See, e.g.,
1
Likewise, we must dismiss the putative “Complaint for Injunctive Relief and
Declaratory Relief.”
2
Pilataxi Tenemaza indicates that the denial of his continuance motion constituted
a discretionary decision that this Court generally lacks the jurisdiction to review. He then
goes on to proffer a constitutional due process challenge to this disposition. However, we
do have jurisdiction to review this ruling in this context. See, e.g., Khan v. Attorney
General, 448 F.3d 226, 229-33 (3d Cir. 2006) (concluding that 8 U.S.C. §
1252(a)(2)(B)(ii) does not deprive court of appeals of jurisdiction over decision on
continuance motion). The government states that we “arguably” lack jurisdiction, but
(contrary to the government’s characterization) this is not a case where the BIA “provides
two alternative grounds for denying relief.” (Respondent’s Brief at 17 n.1 (quoting
Rodas-Leon v. Attorney General, 475 F. App’x 430, 432 (3d Cir. 2012) (per curiam)).)
The parties agree that we review the BIA’s decision affirming the IJ’s denial of the
continuance motion for abuse of discretion. See, e.g., Syblis v. Attorney General, 763
F.3d 348, 352 (3d Cir. 2014); Ponce-Leiva v. Ashcroft,
331 F.3d 369, 374-77 (3d Cir.
2003).
4
Singh v. Gonzales, 432 F.3d 533, 541 (3d Cir. 2006) (quoting Chong v. Dist. Dir., INS,
264 F.3d 378, 386 (3d Cir. 2001)). We conclude that the agency neither abused its
discretion nor violated the Due Process Clause of the Fifth Amendment.
The BIA properly upheld the IJ’s finding of a lack of due diligence. Pilataxi
Tenemaza “had more than 2 years to submit evidence in support of his application and
was specifically instructed on March 2, 2012, to submit the majority of the evidence in
support of his case 1 year in advance of his March 3, 2014, hearing.” (AR3 (citing
AR65-AR66, AR86, AR89-AR90).) Pilataxi Tenemaza contends that “he was unable to
obtain documents from his house because he was under a restraining order 6 months prior
to his March 3, 2014 hearing, from August until December 2012” and his wife would not
cooperate. (Petitioner’s Brief at 9 (citing AR3, AR119).) However, he did not ask for a
continuance at that time, even though he was represented by counsel. Instead, he waited
months until the merits hearing itself to ask for more time. Pilataxi Tenemaza
acknowledges that “Petitioner could have requested the continuance ahead of time,” and,
in turn, he provides no real explanation for why unspecified “communication issues” with
his attorney (which purportedly “may” have prevented him from knowing that a request
could have been made in advance) indicated that he nevertheless exercised due diligence
in this matter or established that he was thereby deprived a fair hearing or a reasonable
opportunity to present evidence. (Id. at 10 (citing AR96).)
In any event, the BIA went on to state that Pilataxi Tenemaza “has not articulated
on appeal how the additional evidence he sought to present is ‘probative, noncumulative,
and significantly favorable’ to him or how the denial of his request for a continuance
5
caused him actual prejudice and harm and materially affected the outcome of his case
([AR12-AR14]).” (AR4 (citing Sibrun, 18 I. & N. Dec. at 356-57).) In fact, Pilataxi
Tenemaza does not identify the actual evidence that he would have presented if his
motion for a continuance had been granted. Accordingly, he cannot establish the
evidence’s probative value or prejudice.3
III.
For the foregoing reasons, we will dismiss Pilataxi Tenemaza’s petition for review
insofar as we lack jurisdiction to review the agency’s hardship determination. Otherwise,
we will deny his petition for review.4
3
Purportedly, it would have been “judicially prudent” to grant a short continuance
because Pilataxi Tenemaza’s wife appeared for his final hearing and they were again on
speaking terms. (Petitioner’s Brief at 10 (“At the very least, once testimony was taken, in
order to afford Petitioner the benefit of the doubt, the IJ could have requested specific
documents limited to the hardship Petitioner had testified to.”).) However, the absence of
so-called “judicial prudence” does not rise to the level of either an abuse of discretion or
a constitutional violation.
4
We accordingly grant the motion to dismiss with respect to the hardship
determination (as well as the “Complaint for Injunctive Relief and Declaratory Relief”).
Otherwise, we deny the motion.
6
