12-894

Heredia v. Holder

BIA

Ferris, IJ

A074 194 050

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

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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

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 27th 4 day of March, two thousand thirteen.

5

6 PRESENT:

7 JOHN M. WALKER, JR.,

8 ROBERT D. SACK,

9 RICHARD C. WESLEY,

10 Circuit Judges. 

11 _______________________________________

12

13 MIGUEL ANGEL HEREDIA, AKA MIGUEL 

14 HEREDIA, AKA ANGEL HEREDIA, AKA

15 MIGUEL HEREIDA, AKA MIGUEL A. HEREIDA,

16 Petitioner, 

17

18 v. 12-894

19

20 ERIC H. HOLDER, JR., UNITED STATES

21 ATTORNEY GENERAL,

22 Respondent.

23 ______________________________________ 24

25 FOR PETITIONER: George A. Terezakis, Mineola, New

26 York.

27

28 FOR RESPONDENT: Stuart F. Delery, Acting Assistant

29 Attorney General; Stephen J. Flynn,
1 Assistant Director; Lynda A. Do,

2 Attorney, Office of Immigration

3 Litigation, U.S. Department of

4 Justice, Washington D.C.

5

6 UPON DUE CONSIDERATION of this petition for review of a

7 Board of Immigration Appeals (“BIA”) decision, it is hereby

8 ORDERED, ADJUDGED, AND DECREED that the petition for review

9 is DENIED.

10 Petitioner Miguel Angel Heredia, a native and citizen

11 of the Dominican Republic, seeks review of the February 6,

12 2012, decision of the BIA affirming the October 21, 2011,

13 decision of Immigration Judge (“IJ”) Noel A. Ferris, denying

14 Heredia’s request for a continuance and ordering him

15 removed. In re Miguel Angel Heredia, No. A074 194 050

16 (B.I.A. Feb. 6, 2012), aff’g No. A074 194 050 (Immig. Ct.

17 N.Y. City Oct. 21, 2011). We assume the parties’

18 familiarity with the underlying facts and procedural history

19 in this case.

20 Under the circumstances of this case, we have reviewed

21 both the IJ’s and the BIA’s opinions “for the sake of

22 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

23 2008) (quotation marks omitted). Heredia challenges only

24 the agency’s denial of a continuance and we review that

25 denial “under a highly deferential standard of abuse of

2
1 discretion.” Morgan v. Gonzales, 445 F.3d 549, 551 (2d Cir.

2 2006). An IJ “may grant a motion for continuance for good

3 cause shown,” 8 C.F.R. § 1003.29, and we will find an abuse

4 of discretion in denying a continuance only if the judge’s

5 decision “rests on an error of law (such as application of

6 the wrong legal principle) or a clearly erroneous factual

7 finding or [if the] decision – though not necessarily the

8 product of a legal error or a clearly erroneous factual

9 finding – cannot be located within the range of permissible

10 decisions,” Morgan, 445 F.3d at 551-52 (internal quotation

11 marks, brackets, and citation omitted).

12 The IJ did not abuse her discretion in denying

13 Heredia’s request for a continuance. The IJ recognized

14 that, under certain circumstances, a continuance might be

15 warranted to pursue post-conviction relief, but she

16 reasonably explained that Heredia had not established good

17 cause for such a continuance because he had not filed a

18 motion to vacate his conviction or submitted any evidence as

19 to the merit of a challenge to his conviction. See Elbahja

20 v. Keisler, 505 F.3d 125, 129 (2d Cir. 2007) (concluding

21 that an IJ does not abuse his or her discretion by denying a

22 continuance sought to pursue relief that is “speculative at

3
1 best”). Furthermore, as the BIA noted, Heredia’s conviction

2 remained final for purposes of his removability. See

3 8 U.S.C. § 1101(a)(48)(A); see also Waugh v. Holder, 642

4 F.3d 1279, 1284 (10th Cir. 2011). 

5 Moreover, although we have found it appropriate in

6 certain circumstances to remand for the BIA to define the

7 boundaries of an IJ’s discretion to grant a continuance,

8 remand is not warranted here. See Rajah v. Mukasey, 544

9 F.3d 449, 454-55 (2d Cir. 2008). Indeed, even if we were to

10 remand for the BIA to establish a standard for granting

11 continuances to pursue post-conviction relief under Padilla

12 v. Kentucky, 559 U.S. 356 (2010), Heredia could not

13 demonstrate that the IJ’s decision constituted an abuse of

14 discretion under any standard so established because he

15 failed to submit evidence of a pending motion to vacate

16 based on Padilla. See Elbahja, 505 F.3d at 129. We note

17 that the U.S. Supreme Court’s recent decision in Chaidez v.

18 United States, holding that Padilla does not apply

19 retroactively to convictions that were already final on

20 direct review when Padilla was issued in 2010, may implicate

21 whether the New York courts would apply Padilla in any post22 conviction proceeding that Heredia might pursue. See

4
1 Chaidez v. United States, 133 S. Ct. 1103, 1113 (2013); see

2 also Griffith v. Kentucky, 479 U.S. 314, 321 (1987)

3 (discussing principles of retroactivity); Danforth v.

4 Minnesota, 552 U.S. 264, 266, 282, 291 (2008). Similarly,

5 because Heredia cannot establish that he was prejudiced by

6 the IJ’s denial of his request for a continuance, his due

7 process claims are without merit. See Garcia-Villeda v.

8 Mukasey, 531 F.3d 141, 149 (2d Cir. 2008) (recognizing that

9 an applicant must demonstrate that he was prejudiced to

10 establish a due process violation). 

11 For the foregoing reasons, the petition for review is

12 DENIED.

13

14 FOR THE COURT: 

15 Catherine O’Hagan Wolfe, Clerk

16

5