11-120-ag

Salto v. Holder

BIA

Weisel, IJ

A099 358 092

A099 358 093

A099 358 094

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 for the Second Circuit, held at the

2 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on

the 29th 3 day of November, two thousand eleven.

4

5 PRESENT:

6 JOSÉ A. CABRANES,

7 CHESTER J. STRAUB,

8 DEBRA ANN LIVINGSTON,

9

10 Circuit Judges.

11 _____________________________________

12

13 ANGEL ROMAN SALTO, a.k.a. ANGEL ROMAN 

14 SALTO LEMA, TRANCITO DE JESUS SALTO, 

15 a.k.a. TRANCITO DE JESUS CHABLA, ANGEL 

16 JONATHAN SALTO, a.k.a. ANGEL JONATHAN 

17 SALTO CHABLA,

18

19 Petitioners, 

20

21 v. 11-120-ag

22

23 ERIC H. HOLDER, JR., UNITED STATES 

24 ATTORNEY GENERAL, 

25 Respondent.

26 _______________________________________

27

28

29 FOR PETITIONERS: Judy Resnick, Far Rockaway, NY.
2

1

2 FOR RESPONDENT: Matthew B. George, Trial Attorney, Office of

3 Immigration Litigation (Derek C. Julius, Senior

4 Litigation Counsel, Office of Immigration Litigation,

5 Tony West, Assistant Attorney General, on the brief),

6 United States Department of Justice, Washington,

7 DC.

8

9 UPON DUE CONSIDERATION of this petition for review of a Board of Immigration

10 Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED, that the

11 petition for review is DENIED.

12

13 Petitioners, natives and citizens of Ecuador, seek review of a December, 16, 2010, order of

14 the BIA, affirming the February 27, 2009, decision of an Immigration Judge (“IJ”) which denied

15 their request for a continuance and ordered them removed. In re Salto, Nos. A099 358 092/093/094

16 (B.I.A. Dec. 16, 2010), aff’g Nos. A099 358 092/093/094 (Immig. Ct. N.Y. City Feb. 27, 2009). We

17 assume the parties’ familiarity with the underlying facts and procedural history in this case.

18

19 Under the circumstances of this case, we have reviewed both the IJ’s and the BIA’s opinions

20 “for the sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008) (internal

21 quotation marks omitted). We review the agency’s denial of a continuance for abuse of discretion. 

22 See Sanusi v. Gonzales, 445 F.3d 193, 199 (2d Cir. 2006); Singh v. U.S. Dep’t of Homeland Sec., 526 F.3d

23 72, 80-81 (2d Cir. 2008). 

24

25 The regulations provide that an IJ “may grant a motion for continuance for good cause

26 shown.” 8 C.F.R. § 1003.29. Although the regulations do not define what may constitute “good

27 cause,” we accord deference to the BIA’s interpretations of its own regulations “unless plainly

28 erroneous or inconsistent with the regulation.” Perriello v. Napolitano, 579 F.3d 135, 138 (2d Cir.

29 2009) (citing Auer v. Robbins, 519 U.S. 452, 461 (1997)).

30

31 Here, the BIA correctly observed that U.S. Citizenship and Immigration Services (“USCIS”)

32 had considered and denied the lead Petitioner’s original I-140 visa petition, his motion to reopen and

33 reconsider, and his administrative appeal. Moreover, the IJ noted the lead Petitioner’s concession,

34 through counsel, that he did not have evidence of his employer’s ability to pay, which was the basis

35 for USCIS’s denial of the I-140 visa petition. In light of these facts, the IJ did not abuse his

36 discretion in denying Petitioners’ request for a continuance. See Pedreros v. Keisler, 503 F.3d 162, 165

37 (2d Cir. 2007); Morgan v. Gonzales, 445 F.3d 549, 552 (2d Cir. 2006). 

38

39 Petitioners argue that their right to due process was violated because U.S. Immigration and

40 Customs Enforcement (“ICE”) received the USCIS’s December 2008 decision denying the visa
3

1 petition before they did, and was able to “spring” it upon them at their December 2008 hearing. As

2 the Government counters, however, at the December 2008 hearing the IJ in fact granted Petitioners

3 a two-month continuance. Likewise, although Petitioners assert that the IJ was “not wholly

4 neutral,” they provide no support for this allegation, other than the fact that the IJ ultimately denied

5 their request for a continuance. In sum, because there is no indication that Petitioners were denied a

6 “‘full and fair opportunity to present [their] claims,’” their due process argument is without basis. 

7 Morgan, 445 F.3d at 552 (quoting Xiao Ji Chen v. U.S. Dep’t of Justice, 434 F.3d 144, 155 (2d Cir. 2006)). 

8

9

10 Conclusion

11

12 For the foregoing reasons, the petition for review is DENIED. As we have completed our

13 review, any stay of removal that the Court previously granted in this petition is VACATED, and any

14 pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending

15 request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate

16 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

17

18

19 FOR THE COURT: 

20 Catherine O’Hagan Wolfe, Clerk

21