Case: 12-60610 Document: 00512259050 Page: 1 Date Filed: 05/31/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 31, 2013
No. 12-60610
Summary Calendar Lyle W. Cayce
Clerk
ALFREDO LOPEZ,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A095-805-365
Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Alfredo Lopez, a native and citizen of Mexico, petitions for review of an
order of the Board of Immigration Appeals (BIA) dismissing his appeal from an
Immigration Judge’s (IJ) order denying his motion for a continuance. He has
abandoned any argument challenging the BIA’s dismissal of his appeal of the
IJ’s denial of his motion for a change of venue by failing to adequately brief the
issue. See Chambers v. Mukasey, 520 F.3d 445, 448 n.1 (5th Cir. 2008); see also
Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003).
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 12-60610 Document: 00512259050 Page: 2 Date Filed: 05/31/2013
No. 12-60610
On a petition for review of a BIA decision, this court reviews the BIA’s
decision and will consider the IJ’s decision to the extent that it influenced the
BIA. Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997). This court has
jurisdiction to review the denial of a motion for continuance. Ahmed v. Gonzales,
447 F.3d 433, 437 (5th Cir. 2006). The denial of a continuance is reviewed for
abuse of discretion. Ali v. Gonzales, 440 F.3d 678, 680 (5th Cir. 2006). There is
no abuse of discretion where the decision to deny a continuance is “not
capricious, racially invidious, utterly without foundation in the evidence, or
otherwise so aberrational that it is arbitrary rather than the result of any
perceptible rational approach.” Cabral v. Holder, 632 F.3d 886, 890 (5th Cir.
2011) (internal quotation marks and citation omitted). “The BIA acts arbitrarily
when it disregards its own precedents and policies without giving a reasonable
explanation for doing so.” Id. An “Immigration Judge may grant a motion for
continuance for good cause shown.” 8 C.F.R. § 1003.29.
Lopez argues that the denial of his motion for a continuance so that he
could seek postconviction relief from state criminal convictions that disqualified
him from obtaining cancellation of removal was an abuse of discretion and
violated his due process rights. He does not dispute that the IJ granted him a
prior five-month continuance to prepare his case and does not argue that he
actually has challenged any of his prior state convictions in postconviction
proceedings. Rather, conceding that his prior convictions for theft and perjury
could disqualify him for cancellation of removal, he asserts that he sought a
continuance so that he could seek postconviction relief on grounds of ineffective
assistance of counsel in reliance on Padilla v. Kentucky, 130 S. Ct. 1473 (2010).
In Cabral, 632 F.3d at 890, this court determined that the BIA did not
abuse its discretion in refusing to hold an appeal in abeyance while an alien
attempted to invalidate a conviction upon which a removability finding was
based. Lopez argues that Cabral is distinguishable because Cabral did not
involve a claim of ineffective assistance of counsel for purposes of Padilla. In
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Case: 12-60610 Document: 00512259050 Page: 3 Date Filed: 05/31/2013
No. 12-60610
Padilla, 130 S. Ct. at 1486, the Supreme Court held that the Sixth Amendment
imposes a constitutional duty on attorneys to advise criminal defendants about
the potential immigration consequences arising from a guilty plea. However,
nothing in Padilla suggests that immigration proceedings must be stayed while
a Padilla-based claim is pursued in postconviction proceedings. See Padilla, 130
S. Ct. at 1477-87; Cabral, 632 F.3d at 890. Moreover, the Supreme Court
recently held that Padilla announced a new rule of constitutional law that is
inapplicable on collateral review to a petitioner seeking a writ of coram nobis
whose federal conviction had become final before Padilla. Chaidez v. United
States, 133 S. Ct. 1103, 1107-13 (2013); see also United States v. Amer, 681 F.3d
211, 214 (5th Cir. 2012).
Lopez has failed to show that the denial of his motion for a continuance to
allow him to pursue Padilla-based postconviction relief challenging convictions
that barred him from seeking cancellation of removal was an abuse of discretion
or violated his due process rights. The petition for review is DENIED.
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