12-1611
Guzman v. Holder
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
StatesthCourthouse, 40 Foley Square, in the City of New York, on
the 13 day of March, two thousand thirteen.
PRESENT: RALPH K. WINTER,
DENNY CHIN,
CHRISTOPHER F. DRONEY,
Circuit Judges.
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JUNIOR RAFAEL VARGAS GUZMAN, AKA
JUNIOR GUZMAN, AKA JUNIOR VARGAS,
Petitioner,
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ERIC H. HOLDER, JR., United States
Attorney General,
Respondent.
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FOR PETITIONER: Thomas E. Moseley, Newark, New Jersey.
FOR RESPONDENT: Stuart F. Delery, Principal
Deputy Assistant Attorney General, Mary
Jane Candaux, Assistant Director, Robbin
K. Blaya, Trial Attorney, Office of
Immigration Litigation, for Eric H.
Holder, Jr., United States Attorney
General, United States Department of
Justice, Washington, District of
Columbia.
Petition for review of a decision of the Board of
Immigration Appeals ("BIA").
UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND
DECREED that Respondent's motion to dismiss the petition for
review is GRANTED and the petition is DISMISSED.
Petitioner Junior Rafael Vargas Guzman, a native and
citizen of the Dominican Republic, seeks review of the April 12,
2012, decision of the BIA affirming the December 1, 2011,
decision of Immigration Judge ("IJ") Steven J. Connelly, denying
Vargas Guzman's fourth request for a continuance and ordering him
removed. In re Junior Rafael Vargas Guzman, No. A044 447 904
(B.I.A. Apr. 12, 2012), aff'g No. A044 447 904 (Immig. Ct.
Batavia Dec. 1, 2011). Vargas Guzman was convicted in state
court of attempted robbery in the second degree in May 2001 and
criminal possession of a weapon in the third degree in April
2005. We assume the parties' familiarity with the underlying
facts, the procedural history of the case, and the issues on
appeal.
Vargas Guzman sought a continuance in his removal
proceedings while awaiting the result of his post-conviction
challenge in a collateral state court proceeding. In that
proceeding, Vargas Guzman argued, based on Padilla v. Kentucky,
559 U.S. 356 (2010), that his 2001 robbery conviction should be
overturned because his attorney failed to advise him of the
immigration consequences of his guilty plea. He argued that if
the Supreme Court found Padilla to apply retroactively, his
robbery conviction would be overturned, he would no longer be
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convicted of an aggravated felony, and he would therefore be
eligible for cancellation of removal. 8 U.S.C. § 1229b(a).
The Supreme Court has now ruled, however, that Padilla
does not have retroactive effect. Chaidez v. United States, 586
U.S. __ (Feb. 20, 2013) (“We conclude that, under the principle
set out in Teague v. Lane, 489 U.S. 288 (1989), Padilla does not
have retroactive effect.”). Therefore, any constitutional or
legal claim that Vargas Guzman might have had based on the
purported retroactive effect of Padilla is now moot.
Accordingly, we lack jurisdiction to review the final order of
removal in this case. See 8 U.S.C. § 1252(a)(2)(C) and
(a)(2)(D).
We have considered petitioner's remaining arguments and
conclude they are without merit. For the foregoing reasons, the
Respondent's motion is GRANTED and the petition for review is
DISMISSED.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
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