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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the 1 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on 2 the 29 thday of November, two thousand eleven. 3 4 PRESENT: 5 J OSÉ A. C ABRANES , 6 C HESTER J. S TRAUB , 7 D EBRA ANN LIVINGSTON , 8 9 Circuit Judges. 10

_____________________________________ 11 12 ANGEL ROMAN SALTO, a.k.a. ANGEL ROMAN 13 SALTO LEMA, TRANCITO DE JESUS SALTO, 14 a.k.a. TRANCITO DE JESUS CHABLA, ANGEL 15 JONATHAN SALTO, a.k.a. ANGEL JONATHAN 16 SALTO CHABLA, 17 18 Petitioners
, 19 20 v. 11-120-ag 21 22 ERIC H. HOLDER, JR., UNITED STATES 23 ATTORNEY GENERAL, 24 Respondent

. 25

_______________________________________ 26 27 28 FOR PETITIONERS: Judy Resnick, Far Rockaway, NY. 29

### 2 1 FOR RESPONDENT: Matthew B. George, Trial Attorney, Office of 2 Immigration Litigation (Derek C. Julius, Senior 3 Litigation Counsel, Office of Immigration Litigation, 4 Tony West, Assistant Attorney General,on the brief ), 5 United States Department of Justice, Washington, 6 DC. 7 8 UPON DUE CONSIDERATION of this petition for review of a Board of Immigration 9 Appeals (“BIA”) decision, it is hereby ORDERED
, ADJUDGED
, AND DECREED , that the 10 petition for review is DENIED

. 11 12 Petitioners, natives and citizens of Ecuador, seek review of a December, 16, 2010, order of 13 the BIA, affirming the February 27, 2009, decisi on of an Immigration Judge (“IJ”) which denied 14 their request for a continuance and ordered them removed. In re Salto , Nos. A099 358 092/093/094 15 (B.I.A. Dec. 16, 2010), aff’g Nos. A099 358 092/093/094 (Immig. Ct. N.Y. City Feb. 27, 2009). We 16 assume the parties’ familiarity with the underlying facts and procedural history in this case. 17 18 Under the circumstances of this case, we have reviewed both the IJ’s and the BIA’s opinions 19 “for the sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008) (internal 20 quotation marks omitted). We review the agency’s de nial of a continuance for abuse of discretion. 21 See Sanusi v. Gonzales, 445 F.3d 193, 199 (2d Cir. 2006); Singh v. U.S. Dep’t of Homeland Sec. , 526 F.3d 22 72, 80-81 (2d Cir. 2008). 23 24 The regulations provide that an IJ “may grant a motion for continuance for good cause 25 shown.” 8 C.F.R. § 1003.29. Although the regulations do not define what may constitute “good 26 cause,” we accord deference to the BIA’s interpr etations of its own regulations “unless plainly 27 erroneous or inconsistent with the regulation.” Perriello v. Napolitano , 579 F.3d 135, 138 (2d Cir. 28 2009) (citing Auer v. Robbins, 519 U.S. 452, 461 (1997)). 29 30 Here, the BIA correctly observed that U.S. Citi zenship and Immigration Services (“USCIS”) 31 had considered and denied the lead Petitioner’s orig inal I-140 visa petition, his motion to reopen and 32 reconsider, and his administrative appeal. Moreover, the IJ noted the lead Petitioner’s concession, 33 through counsel, that he did not have evidence of his employer’s ability to pay, which was the basis 34 for USCIS’s denial of the I-140 visa petition. In light of these facts, the IJ did not abuse his 35 discretion in denying Petitioners’ request for a continuance. See Pedreros v. Keisler , 503 F.3d 162, 165 36 (2d Cir. 2007);Morgan v. Gonzales , 445 F.3d 549, 552 (2d Cir. 2006). 37 38 Petitioners argue that their right to due pro cess was violated because U.S. Immigration and 39 Customs Enforcement (“ICE”) received the USCIS’s December 2008 decision denying the visa 403 petition before they did, and was able to “spring” it upon them at their December 2008 hearing. As 1 the Government counters, however, at the December 2008 hearing the IJ in fact granted Petitioners 2 a two-month continuance. Likewise, although Petitioners assert that the IJ was “not wholly 3 neutral,” they provide no support for this allegation, other than the fact that the IJ ultimately denied 4 their request for a continuance. In sum, because there is no indication that Petitioners were denied a 5 “‘full and fair opportunity to present [their] claims,’ ” their due process argument is without basis. 6 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)). 7 8 9 Conclusion 10 11 For the foregoing reasons, the petition for review is DENIED . As we have completed our 12 review, any stay of removal that the Court previously granted in this petition is VACATED , and any 13 pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending 14 request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate 15 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b). 16 17 18 FOR THE COURT: 19 Catherine O’Hagan Wolfe, Clerk 20
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