15-1322
Arana-Mejia v. Sessions
BIA
Montante, IJ
A089 002 636
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.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 23rd day of February, two thousand seventeen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 BARRINGTON D. PARKER,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _____________________________________
12
13 JAVIER AUGUSTO ARANA-MEJIA, AKA
14 LUIS ELRIQUE GONZALE BACENET,
15 Petitioner,
16
17 v. 15-1322
18 NAC
19 JEFF SESSIONS, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.*
22 _____________________________________
23
24 FOR PETITIONER: Jose Perez, Syracuse, N.Y.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; John W.
28 Blakeley, Assistant Director;
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
General Jeff Sessions is automatically substituted for former
Attorney General Loretta E. Lynch as respondent.
1 Enitan O. Otunla, Trial Attorney,
2 Office of Immigration Litigation,
3 United States Department of Justice,
4 Washington, D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review is
9 DENIED.
10 Petitioner Javier Augusto Arana-Mejia, a native and
11 citizen of Guatemala, seeks review of a March 24, 2015, decision
12 of the BIA affirming a November 4, 2013, decision of an
13 Immigration Judge (“IJ”) denying Arana-Mejia’s motion for a
14 continuance and application for voluntary departure. In re
15 Javier Augusto Arana-Mejia, No. A089 002 636 (B.I.A. Mar. 24,
16 2015), aff’g No. A089 002 636 (Immig. Ct. Buffalo Nov. 4, 2013).
17 We assume the parties’ familiarity with the underlying facts
18 and procedural history in this case.
19 Under the circumstances of this case, we have reviewed both
20 the IJ’s and BIA’s decisions. Zaman v. Mukasey, 514 F.3d 233,
21 237 (2d Cir. 2008). We note at the outset that Arana-Mejia
22 challenges only the agency’s denial of his motion for a
2
1 continuance; he does not contest the denial of voluntary
2 departure.
3 We review the agency’s denial of a continuance “under a
4 highly deferential standard of abuse of discretion.” Morgan
5 v. Gonzales, 445 F.3d 549, 551 (2d Cir. 2006). That is because
6 “IJs are accorded wide latitude in calendar management, and we
7 will not micromanage their scheduling decisions any more than
8 we review such decisions by district judges.” Id.
9 An IJ “may grant a motion for continuance for good cause
10 shown.” 8 C.F.R. § 1003.29. Although the regulations do not
11 define “good cause,” the agency requires that a movant seeking
12 a “continuance based upon an asserted lack of
13 preparation . . . make a reasonable showing that the lack of
14 preparation occurred despite a diligent good faith effort to
15 be ready to proceed . . . [and] establish[] that th[e] denial
16 caused him actual prejudice and harm and materially impacted
17 the outcome of his case.” In re Sibrun, 18 I. & N. Dec. 354,
18 356-57 (B.I.A. 1983).
19 The agency did not abuse its discretion in denying a
20 continuance because Arana-Mejia did not make “a reasonable
21 showing that the lack of preparation occurred despite a diligent
3
1 good faith effort to be ready to proceed.” In re Sibrun, 18
2 I. & N. at 356. Arana-Mejia argues in this Court that he
3 telephoned many attorneys, but was not able to retain one. He
4 did not make this claim before the agency; instead, he offered
5 no account of his attempts to secure counsel in the two months
6 since firing his prior attorney or any plausible explanation
7 for why the attorney he had supposedly retained to replace her
8 was not present. The agency also correctly observed that
9 Arana-Mejia’s case had been pending for over two-and-a-half
10 years and that he had been given a list of free legal services
11 providers before he was even placed in removal proceedings.
12 Under such circumstances, Arana-Mejia did not make a
13 “reasonable showing that the lack of preparation occurred
14 despite a diligent good faith effort.” In re Sibrun, 18 I. &
15 N. at 356.
16 Even assuming that Arana-Mejia had established diligence,
17 he is unable to show that the “denial [of a continuance] caused
18 him actual prejudice[.]” In re Sibrun, 18 I. & N. Dec. at
19 356-57. He asserts that the record clearly demonstrates he may
20 have a legitimate claim for asylum and related relief and that
21 he was therefore prejudiced by the continuance denial. But
4
1 despite being counseled both on appeal to the BIA and in this
2 Court, Arana-Mejia has neither submitted an I-589 asylum
3 application nor articulated a claim. Accordingly, he has
4 failed to demonstrate actual prejudice with respect to any
5 potential claim for asylum and related relief. Cf. Rabiu v.
6 INS, 41 F.3d 879, 882 (2d Cir. 1994) (A petitioner seeking to
7 establish actual prejudice from his attorney’s failure to apply
8 for relief from removal “must make a prima facie showing that
9 he would have been eligible for the relief.”).
10 Arana-Mejia also asserts that he is entitled to a
11 continuance on the grounds that his due process rights were
12 violated when the IJ admitted into evidence his Form I-213
13 Record of Deportable/Inadmissible Alien without affording him
14 sufficient time to examine it. “Parties claiming denial of due
15 process in immigration cases must, in order to prevail, ‘allege
16 some cognizable prejudice fairly attributable to the challenged
17 process.’” Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d
18 Cir.2008) (citation omitted). Again, Arana-Mejia cannot show
19 prejudice: the Form I-213 was admitted as evidence of his
20 criminal history and his false claim of U.S. citizenship, and
21 Arana-Mejia’s testimony independently established both.
5
1 Those findings, moreover, were made in support of the agency’s
2 denial of voluntary departure, which Arana-Mejia does not
3 contest on appeal.
4 For the foregoing reasons, the petition for review is
5 DENIED. As we have completed our review, any stay of removal
6 that the Court previously granted in this petition is VACATED,
7 and any pending motion for a stay of removal in this petition
8 is DISMISSED as moot. Any pending request for oral argument
9 in this petition is DENIED in accordance with Federal Rule of
10 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
11 34.1(b).
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
6