Pomaquiza-Quinde v. Holder

12-4871
Pomaquiza-Quinde v. Holder
BIA
Straus, I.J.
A087 947 573
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
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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 29th day of April, two thousand fourteen.

PRESENT:
RALPH K. WINTER,
BARRINGTON D. PARKER,
PETER W. HALL,
Circuit Judges.
_____________________________________

MARCELO EUGENIO POMAQUIZA-QUINDE,
Petitioner,

v. 12-4871

ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________

FOR PETITIONER: James A. Welcome, Waterbury, CT.

FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; Blair T. O’Connor,
Assistant Director; John B. Holt,
Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a

decision of the Board of Immigration Appeals (“BIA”), it is

hereby ORDERED, ADJUDGED, AND DECREED that the petition for

review is DENIED.

Marcelo Eugenio Pomaquiza-Quinde, a native and citizen

of Ecuador, seeks review of a November 21, 2012, decision of

the BIA affirming the August 2, 2011 decision of an

Immigration Judge (“IJ”) ordering him removed. In re

Marcelo Eugenio Pomaquiza-Quinde, No. A087 947 573 (B.I.A.

Nov. 21, 2012), aff’g No. A087 947 573 (Immig. Ct. Hartford

Aug. 2, 2011). We assume the parties’ familiarity with the

underlying facts and procedural history of this case.

Pomaquiza-Quinde conceded removability and challenges

only the agency’s denial of a continuance. We review such a

denial “under a highly deferential standard of abuse of

discretion.” Morgan v. Gonzales, 445 F.3d 549, 551 (2d Cir.

2006). Because the BIA explicitly stated that it did not

rely on the IJ’s ruling that Pomaquiza-Quinde had not

established his eligibility for Special Immigrant Juvenile

Status (“SIJS”), we do not consider that ruling. See Ming

Xia Chen v. BIA, 435 F.3d 141, 144 (2d Cir. 2006).

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We find no error in the agency’s denial of a third

continuance. In “adjudicating motions to continue to give

the respondent more time to prepare and the opportunity to

obtain additional evidence,” the respondent must “at a

minimum, . . . [make] a ‘reasonable showing that the lack of

preparation occurred despite a diligent good faith effort to

be ready to proceed and that any additional evidence [the

alien] seeks to present is probative, noncumulative, and

significantly favorable to the alien.’” Matter of Hashmi,

24 I&N Dec. 785, 788 (BIA 2009) (quoting Matter of Sibrun,

18 I&N Dec. 354, 356 (BIA 1983)). The IJ denied a third

continuance because Pomaquiza-Quinde had time to start

proceedings in state court but had not done so and an

attempt to convince the Department of Homeland Security to

close the case administratively appeared unsuccessful. The

record supports these findings, as Pomaquiza-Quinde provided

no evidence that any actions had been taken to determine his

juvenile status between his initial placement in proceedings

and his third hearing.

Contrary to Pomaquiza-Quinde’s argument in his brief,

his failure to file a state court action to secure a ruling

on his juvenile status was a proper reason for denying a

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third continuance, as responsibility for the delay is a

“critical” factor in a continuance determination. In re

Hashmi, 24 I&N Dec. at 793-94. In addition, Pomaquiza-

Quinde’s argument that it was improper for the agency to

consider the grant of two prior continuances is unavailing.

“[A] history of continuances being granted by the [IJ]. . .,

coupled with other relevant factors, may support a decision

to move forward with the case.” In re Hashmi, 24 I&N Dec.

at 794. The agency properly considered the prior

continuances in conjunction with the inaction and delay by

Pomaquiza-Quinde in adjudicating his juvenile status in

state court and seeking administrative closure.

For the foregoing reasons, the petition for review is

DENIED.

FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk