09-1849-ag
Mir v. Holder
BIA
Burr, IJ
A 095 963 557
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 A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 26 th day of March, two thousand ten.
5
6 PRESENT:
7 REENA RAGGI,
8 RICHARD C. WESLEY,
9 PETER W. HALL,
10 Circuit Judges.
11 ______________________________________
12
13 ZULFIQAR MURTAZA MIR,
14 Petitioner,
15 09-1849-ag
16 v. NAC
17
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Usman B. Ahmad, Long Island City,
24 New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General, Civil Division; Francis W.
28 Fraser, Senior Litigation Counsel;
29 Kate D. Balaban, Trial Attorney,
30 Office of Immigration Litigation,
31 Civil Division, United States
32 Department of Justice, Washington,
33 D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner, Zulfiqar Murtaza Mir, a native and citizen
6 of Pakistan, seeks review of an April 20, 2009, order of the
7 BIA affirming Immigration Judge (“IJ”) Sarah M. Burr’s March
8 12, 2008, decision denying his motion for a continuance and
9 ordering him removed to Pakistan. 1 In re Zulfiqar Murtaza
10 Mir, No. A 095 963 557 (B.I.A. Apr. 20, 2009); aff’g No. A
11 095 963 557 (Immig. Ct. N.Y. City Mar. 12, 2008). We assume
12 the parties’ familiarity with the underlying facts and
13 procedural history of the case.
14 The BIA did not abuse its discretion in affirming the
15 IJ’s denial of Mir’s motion for a continuance. See Sanusi
16 v. Gonzales, 445 F.3d 193, 199 (2d Cir. 2006). An agency
17 does not abuse its discretion in denying a petitioner’s
18 motion for a continuance while his I-130 petition is pending
19 on appeal before the BIA when there is a “reliable basis to
1
The BIA’s April 2009 order also affirmed IJ Burr’s
December 2004 order denying Mir’s application for asylum,
withholding of removal, and CAT relief. Mir does not
challenge that aspect of the BIA’s decision.
2
1 conclude” that the petition will “ultimately be denied.”
2 Pedreros v. Keisler, 503 F.3d 162, 166 (2d Cir. 2007).
3 Here, the BIA found that Mir presented no evidence that the
4 Department of Homeland Security incorrectly denied his I-130
5 petition aside from “mere argument[s]” disagreeing with that
6 decision. The BIA noted that the denial was based on twelve
7 inconsistencies between Mir’s testimony and that of his wife
8 during their Stokes interview. See Morgan v. Gonzales, 445
9 F.3d 549, 550 n.1 (2d Cir. 2006). Although Mir provided
10 explanations for these discrepancies in his motion, the BIA
11 found that they were insufficient to reconcile the “glaring
12 inconsistencies” identified during the interview.
13 The agency has broad discretion to grant or deny
14 continuances. See Morgan 445 F.3d at 551. We cannot say
15 that the BIA abused that discretion in this case. See
16 Pedreros, 503 F.3d at 166. For the same reasons, the BIA
17 did not violate Mir’s due process rights. See id. 2
2
Nor does Matter of Hashmi, 25 I. & N. Dec. 785
(B.I.A. 2009) require remand. There, the BIA emphasized
that, while many factors are relevant to the IJ’s
continuance decision, “the focus of the inquiry is the
apparent ultimate likelihood of success on the adjustment
application.” Id. At 790. Here, before Hashmi was
decided, the IJ and the BIA effectively concluded that,
in light of the district director’s decision, Mir’s
application was unlikely to succeed. Accordingly, we
3
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted is VACATED, and
4 any pending motion for a stay of removal in this petition is
5 DISMISSED as moot. Any pending request for oral argument in
6 this petition is DENIED in accordance with Federal Rule of
7 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
8 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
11
12
identify no abuse of discretion.
4