Judges: Per Curiam
Filed: Jul. 26, 2016
Latest Update: Mar. 03, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted July 22, 2016* Decided July 26, 2016 Before DIANE P. WOOD, Chief Judge ILANA DIAMOND ROVNER, Circuit Judge DAVID F. HAMILTON, Circuit Judge No. 15-3229 ABELARDO BARRIENTOS ARNOBIT, Petition for Review of an Order of the Petitioner, Board of Immigration Appeals. v. No. A041-245-950 LORETTA E. LYNCH, Attorney General of the Un
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted July 22, 2016* Decided July 26, 2016 Before DIANE P. WOOD, Chief Judge ILANA DIAMOND ROVNER, Circuit Judge DAVID F. HAMILTON, Circuit Judge No. 15-3229 ABELARDO BARRIENTOS ARNOBIT, Petition for Review of an Order of the Petitioner, Board of Immigration Appeals. v. No. A041-245-950 LORETTA E. LYNCH, Attorney General of the Uni..
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 22, 2016*
Decided July 26, 2016
Before
DIANE P. WOOD, Chief Judge
ILANA DIAMOND ROVNER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 15‐3229
ABELARDO BARRIENTOS ARNOBIT, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals.
v. No. A041‐245‐950
LORETTA E. LYNCH,
Attorney General of the United States,
Respondent.
O R D E R
* After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus the appeal is submitted on the briefs and the record.
See FED. R. APP. P. 34(a)(2)(C).
No. 15‐3229 Page 2
Abelardo Barrientos Arnobit, a citizen of the Philippines, petitions pro se1 for
review of a final order of the Board of Immigration Appeals affirming an immigration
judge’s denial of his request for a fourth continuance. We deny the petition.
Arnobit, then in his early thirties, entered the United States as a lawful
permanent resident in 1987. Nine years after his arrival, in 1996, he pleaded nolo
contendere to two crimes—attempted grand theft of a vehicle and receiving stolen
property. In 2009 the government initiated removal proceedings alleging that Arnobit
was removable because these were convictions for crimes involving moral turpitude.
See 8 U.S.C. § 1227(a)(2)(A)(ii).
The proceedings have been protracted. The IJ first granted Arnobit a continuance
in March 2010 to obtain counsel. When Arnobit appeared with counsel in December
2010, the IJ found him removable but granted a second continuance to apply for a
waiver under the former § 212(c) of the Immigration and Nationality Act—a
discretionary waiver of removability available to lawful permanent residents who were
domiciled in the United States at least seven consecutive years. See 8 U.S.C. § 1182(c)
(repealed 1996); INS v. St. Cyr, 533 U.S. 289, 294–98, 315 (2001). At the next hearing in
November 2011, Arnobit, through counsel, submitted an application for a § 212(c)
waiver, and the IJ scheduled another hearing date two years later to consider the merits.
At the hearing in January 2014, Arnobit appeared with new counsel, and the
government presented new information that he also had been convicted in California in
2009 for possessing a controlled substance, a conviction that likely made him ineligible
for a § 212(c) waiver. See 8 U.S.C. § 1182(c) (repealed 1996); United States v. De Horta
Garcia, 519 F.3d 658, 659 (7th Cir. 2008). “Out of an abundance of caution,” the IJ said,
she wanted to see more documentation concerning Arnobit’s criminal dispositions, so
she granted Arnobit “one more continuance.”
Four months later Arnobit conceded that he was not eligible for the § 212(c)
waiver but asked for a fourth continuance. Arnobit, through counsel, told the IJ that he
wanted time to seek a pardon to vacate the California controlled‐substance offence. He
also advised the IJ that he was awaiting a decision in a case pending before this court
that would allow “stand‐alone” applications for a § 212(h) waiver of inadmissibility
(instead of requiring a concurrent application for adjustment of status). See 8 U.S.C.
§ 1182(h); Klementanovsky v. Gonzales, 501 F.3d 788, 792–94 (7th Cir. 2007).
1 After briefing in this court had been completed, Arnobit’s counsel moved to
withdraw and we granted the motion.
No. 15‐3229 Page 3
The IJ denied Arnobit’s request for another continuance because the possibilities
of a pardon or a favorable ruling from this court regarding § 212(h) waivers were “far
too speculative.” Because Arnobit’s removability had been established by clear and
convincing evidence, the IJ ordered his removal. The IJ agreed, however, to reopen the
matter if Arnobit obtained a pardon or became eligible for a § 212(h) waiver. The IJ’s
decision was upheld by the Board of Immigration Appeals, which concluded that
Arnobit’s hope for a “stand‐alone” § 212(h) waiver had since been foreclosed by our
recent holding in Palma‐Martinez v. Lynch, 785 F.3d 1147, 1149–50 (7th Cir. 2015), and
that Arnobit did not demonstrate good cause for a continuance based on the
“speculative possibility” of postconviction relief.
When an alien such as Arnobit is removable for committing crimes involving
moral turpitude, we generally lack jurisdiction under 8 U.S.C. § 1252(a)(2)(C) to review
the final order of removal, including prior procedural orders like a motion for a
continuance. See Moral–Salazar v. Holder, 708 F.3d 957, 960–62 (7th Cir. 2013). But we
retain jurisdiction to review constitutional claims and questions of law. See 8 U.S.C.
§ 1252(a)(2)(D); Adame v. Holder, 762 F.3d 667, 670, 672–73 (7th Cir. 2014). In his petition,
Arnobit raises a legal question when he argues that the IJ and the Board did not
sufficiently explain their denial of his request for a continuance and did not follow
Matter of Hashmi, 24 I. & N. Dec. 785 (BIA 2009), a precedential Board decision that
outlined factors an IJ may consider when determining whether good cause exists to
continue removal proceedings pending the adjudication of a family‐based visa petition.
Even if we assume that Arnobit’s submission to the Board sufficiently raised the
issue of the adequacy of the IJ’s explanation, his argument fails. The IJ and Board
sufficiently explained why a continuance was not warranted: the speculative possibility
of post‐conviction relief did not demonstrate good cause and our decision in
Palma‐Martinez upheld the Board’s interpretation that a “stand‐alone” § 212(h) waiver
was not available for aliens in Arnobit’s circumstances. See 8 C.F.R. § 1003.29;
Palma‐Martinez, 785 F.3d at 1150–51. Moreover, here the IJ and Board did not fail to
follow precedent: Hashmi outlined factors to be considered when an adjustment‐of‐
status application is pending, and that is not the case here. Matter of Hashmi, 24 I. & N.
Dec. at 790.
Arnobit also asserts generally that the IJ and the Board denied him his due
process right to a “full and fair hearing on the merits of his case,” but this charge is the
type of unfocused argument that this court has repeatedly concluded does not present a
No. 15‐3229 Page 4
constitutional claim. See Delgado v. Holder, 674 F.3d 759, 765 (7th Cir. 2012);
Portillo–Rendon v. Holder, 662 F.3d 815, 817 (7th Cir. 2011).
Accordingly, Arnobit’s petition is DENIED.