14-4291-ag
Vazquez v. Lynch
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT
ON ANY PARTY NOT REPRESENTED BY COUNSEL.
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 2nd day of December, two thousand fifteen.
PRESENT:
AMALYA L. KEARSE,
REENA RAGGI,
RICHARD C. WESLEY,
Circuit Judges.
_____________________________________
FRANKLIN VAZQUEZ, AKA Franklin Emilio
Vazquez, AKA Franklin E. Vazquez,
Petitioner,
v.
14-4291-ag
LORETTA E. LYNCH, United States
Attorney General,*
Respondent.
_____________________________________
FOR PETITIONER: Tanya T. Dorman, Dorman Law Firm, LLC,
Hartford, Connecticut.1
*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Loretta E.
Lynch is automatically substituted for former Attorney General Eric H. Holder, Jr. as
Respondent.
1 Tanya T. Dorman submitted a brief in support of the petition for review, but on
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy Assistant
Attorney General; Terri J. Scadron, Assistant
Director; Richard Zanfardino, Trial Attorney,
Office of Immigration Litigation, United States
Department of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals (“BIA”) decision entered on October 17, 2012, IT IS HEREBY
ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED.
Petitioner Franklin Vazquez, a native and citizen of Ecuador, seeks review of an
October 17, 2014 BIA decision upholding a December 17, 2012 Immigration Judge (“IJ”)
decision denying Vazquez a continuance and ordering him removed. See In re Franklin
Vazquez, No. A200 689 126 (B.I.A. Oct. 17, 2014), upholding No. A200 689 126 (Immig.
Ct. Hartford Dec. 17, 2012). We assume the parties’ familiarity with the underlying facts
and procedural history of this case, which we reference only as necessary to explain our
decision to deny review.
Under the circumstances of this case, we have reviewed both the BIA’s and the IJ’s
decisions. See Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008). We review an IJ’s
denial of a continuance for abuse of discretion, see Sanusi v. Gonzales, 445 F.3d 193, 199
(2d Cir. 2006), utilizing a “highly deferential standard,” Morgan v. Gonzales, 445 F.3d
549, 551 (2d Cir. 2006). An abuse of discretion occurs when an IJ’s “decision rests on an
November 19, 2015, this court granted Dorman’s motion to withdraw as Vazquez’s
counsel.
2
error of law (such as application of the wrong legal principle) or a clearly erroneous factual
finding,” or “his decision—though not necessarily the product of a legal error or a clearly
erroneous factual finding—cannot be located within the range of permissible decisions.”
Id. at 551−52 (alterations and internal quotation marks omitted). We identify no such
abuse here. The IJ recognized that Vazquez’s wife’s pregnancy was a “sympathetic
factor[].” Hr’g Tr., Dec. 17, 2012, at 46. Nevertheless, his decision not to grant Vazquez
a sixth continuance in a proceeding begun nearly two years earlier was well within the
range of permissible decisions. See Sanusi v. Gonzales, 445 F.3d at 198−200 (holding
that IJ’s denial of third continuance was not abuse of discretion).2
Nor has Vazquez identified a due process violation. To establish such a violation,
Vazquez must show that he was “denied a full and fair opportunity to present [his] claims
or that the IJ or BIA otherwise deprived [him] of fundamental fairness.” Burger v.
Gonzales, 498 F.3d 131, 134 (2d Cir. 2007) (internal quotation marks omitted). Further,
he must “allege some cognizable prejudice fairly attributable to the challenged process.”
Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d Cir. 2008) (internal quotation marks
omitted).
2 Although, the government represented that this was Vazquez’s fifth requested
continuance, in April 2011, an IJ granted Vazquez a ten-month “continuance” to seek
counsel. Thus, we construe Vazquez’s request as for a sixth, rather than fifth,
continuance.
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Vazquez cannot carry this burden because the record demonstrates that he had a full
and fair opportunity to apply for voluntary departure. The possibility of voluntary
departure was first raised in April 2012. On August 30, 2012, Vazquez’s counsel
represented that he would be ready to pursue voluntary departure on September 10, 2012.
When, on September 10, 2012, the IJ granted Vazquez’s substitute counsel a 30-day
continuance, the IJ stated, and counsel confirmed, that the voluntary departure issue would
be addressed at the next appearance. Three months later, on December 17, 2012, Vazquez
was given the chance to confer with his attorney regarding voluntary departure and
specifically chose not to apply. These circumstances preclude a claim of insufficient
notice and opportunity to seek voluntary departure.
Nor has Vazquez shown prejudice. Vazquez has not shown that he was eligible for
voluntary departure or that the agency was likely to grant such discretionary relief.
Further, insofar as Vazquez requested a further continuance so that his departure would
take place after his wife gave birth; as the BIA noted, the 16-month pendency of his appeal
gave him more time than he requested.
We have considered petitioner’s remaining arguments and conclude that they are
without merit. For the foregoing reasons, the petition for review is DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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