19-482
Wilson v. Garland
BIA
Ruehle, IJ
A075 913 677
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 28th day of July, two thousand twenty-one.
PRESENT:
JON O. NEWMAN,
ROSEMARY S. POOLER,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
WENDELL K. WILSON,
Petitioner,
v. 19-482
NAC
MERRICK B. GARLAND, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Robert F. Graziano, Buffalo, NY.
FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
General; Claire L. Workman, Senior
Litigation Counsel; Rachel L.
Browning, Trial Attorney, Office
of Immigration Litigation, United
States Department of Justice,
Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Wendell K. Wilson, a native and citizen of
Grenada, seeks review of a January 28, 2019 decision of the
BIA affirming an August 17, 2018 decision of an Immigration
Judge (“IJ”). In re Wendell K. Wilson, No. A 075 913 677
(B.I.A. Jan. 28, 2019), aff’g No. A 075 913 677 (Immig. Ct.
Batavia Aug. 17, 2018). We assume the parties’ familiarity
with the underlying facts and procedural history.
We have considered both the BIA’s and IJ’s decision “for
the sake of completeness.” Wangchuck v. Dep’t of Homeland
Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review the
agency’s factual findings for substantial evidence and its
legal conclusions, including constitutional claims, de novo.
See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d
510, 513, 516 (2d Cir. 2009); Pierre v. Holder, 588 F.3d 767,
772 (2d Cir. 2009).
The agency denied cancellation of removal and Wilson’s
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motions to subpoena a witness in support of that relief and
for a continuance to pursue an asylum application. Wilson
does not challenge the agency’s discretionary denial of
cancellation of removal, but he argues that the denial of a
subpoena and a continuance deprived him of due process. 1 To
succeed on a due process claim, Wilson must show that he was
denied a “full and fair opportunity” to present his claims or
that he was otherwise deprived of “fundamental fairness,”
Burger v. Gonzales, 498 F.3d 131, 134 (2d Cir. 2007) (internal
quotation marks omitted), and that the deprivation resulted
in “cognizable prejudice,” Garcia-Villeda v. Mukasey, 531
F.3d 141, 149 (2d Cir. 2008) (internal quotation marks
omitted). We find no due process violation.
The agency did not abuse its discretion or deprive Wilson
of due process by denying a continuance for him to pursue
asylum. See Sanusi v. Gonzales, 445 F.3d 193, 199 (2d Cir.
2006) (reviewing denial of continuance for abuse of
discretion). “The immigration judge may grant a motion for
1Our jurisdiction to review the denial of discretionary relief,
like cancellation of removal, is limited to constitutional claims
and questions of law. 8 U.S.C. § 1252(a)(2)(B), (D). We have
jurisdiction here because Wilson’s arguments implicate due
process.
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continuance for good cause shown.” 8 C.F.R. § 1003.29. IJs
have “broad discretion” and “are accorded wide latitude in
calendar management.” Morgan v. Gonzales, 445 F.3d 549, 551
(2d Cir. 2006). To state a due process claim or challenge a
continuance, the applicant for relief must establish, among
other things, that the denial of the continuance caused
prejudice and “materially affected the outcome of his case.”
Matter of Sibrun, 18 I. & N. Dec. 354, 358 (B.I.A. 1983); see
also Garcia-Villeda, 531 F.3d at 149.
Wilson had opportunities to alert the IJ to his asylum
claim, but his first attorney indicated there were no
additional applications, Wilson did not mention asylum to the
IJ after that attorney withdrew despite having possession of
the application for relief and alerting the IJ to other
issues, and his second counsel did not raise the asylum claim
until the merits hearing. Moreover, Wilson has not shown
prejudice because he has not subsequently presented any
evidence to support the basis for his asylum claim. See
Matter of Sibrun, 18 I. & N. Dec. at 356–57 (requiring movant
to “specifically articulate the particular facts involved or
evidence which he would have presented”).
4
As to Wilson’s motion for a subpoena, an IJ “may issue a
subpoena upon his or her own volition or upon application of
the Service or the alien.” 8 C.F.R. § 1003.35(b)(1). “A
party applying for a subpoena shall be required, as a
condition precedent to its issuance, to state in writing or
at the proceeding, what he or she expects to prove by such
witnesses or documentary evidence, and to show affirmatively
that he or she has made diligent effort, without success, to
produce the same.” Id. § 1003.35(b)(2). An IJ is required
to grant a subpoena only if the “evidence is essential.” Id.
§ 1003.35(b)(3).
The IJ did not err in declining to subpoena Wilson’s
son’s testimony. Wilson has not demonstrated that his son’s
testimony was essential or that he made a good faith, diligent
effort to obtain his son’s testimony absent a subpoena.
Wilson has not identified what information his son would have
provided that was not already in his son’s written statement.
The IJ considered the potential value of the testimony, and
found it lacking given the lack of documentation to
corroborate the allegations regarding Wilson’s son’s mother.
And Wilson did not show diligence as he made his motion orally
5
on the day of the hearing and provided only his attorney’s
oral statement that his son’s mother had not returned an
unidentified number of calls or text messages.
Finally, Wilson has not established prejudice because
his son’s testimony would have addressed hardship, but the IJ
alternatively denied cancellation of removal as a matter of
discretion. “[C]ancellation of removal is a two-step
process. First, an alien must prove eligibility by showing
that he meets the statutory eligibility requirements. Second,
assuming an alien satisfies the statutory requirements, the
Attorney General in his discretion decides whether to grant
or deny relief.” Mendez v. Holder, 566 F.3d 316, 319–20 (2d
Cir. 2009) (internal quotation marks omitted). The IJ
determined that Wilson did not merit a favorable exercise of
discretion because of his criminal conviction, history of
selling drugs, failure to file income taxes for several years,
and lack of evidence of financial support for his son.
Accordingly, Wilson cannot show that his son’s testimony
regarding harship, which went to eligibility for
cancellation, would have affected the outcome of his
proceedings. 8 U.S.C. § 1229b(b); Garcia-Villeda, 531 F.3d
6
at 149 (requiring “cognizable prejudice” to state due process
claim).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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