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**  **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**  1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 27 th** **day of March, two thousand thirteen.** 4 5 **PRESENT:** 6 **JOHN M. WALKER, JR.,** 7 **ROBERT D. SACK,** 8 **RICHARD C. WESLEY,** 9 Circuit Judges **.** 10

**_______________________________________** 11 12 **MIGUEL ANGEL HEREDIA, AKA MIGUEL** 13 **HEREDIA, AKA ANGEL HEREDIA, AKA** 14 **MIGUEL HEREIDA, AKA MIGUEL A. HEREIDA,** 15 Petitioner**,** 16 17 **v. 12-894** 18 19 **ERIC H. HOLDER, JR., UNITED STATES** 20 **ATTORNEY GENERAL,** 21 Respondent **.** 22

**______________________________________** 23 24 **FOR PETITIONER: George A. Terezakis, Mineola, New** 25 **York.** 26 27 **FOR RESPONDENT: Stuart F. Delery, Acting Assistant** 28 **Attorney General; Stephen J. Flynn,** 29**Assistant Director; Lynda A. Do,** 1 **Attorney, Office of Immigration** 2 **Litigation, U.S. Department of** 3 **Justice, Washington D.C.** 4 5 UPON DUE CONSIDERATION of this petition for review of a 6 Board of Immigration Appeals (“BIA”) decision, it is hereby 7 ORDERED, ADJUDGED, AND DECREED that the petition for review 8 is DENIED. 9 Petitioner Miguel Angel Heredia, a native and citizen 10 of the Dominican Republic, seeks review of the February 6, 11 2012, decision of the BIA affirming the October 21, 2011, 12 decision of Immigration Judge (“IJ”) Noel A. Ferris, denying 13 Heredia’s request for a continuance and ordering him 14 removed. In re Miguel Angel Heredia, No. A074 194 050 15 (B.I.A. Feb. 6, 2012), aff’gNo. A074 194 050 (Immig. Ct. 16 N.Y. City Oct. 21, 2011). We assume the parties’ 17 familiarity with the underlying facts and procedural history 18 in this case. 19 Under the circumstances of this case, we have reviewed 20 both the IJ’s and the BIA’s opinions “for the sake of 21 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 22 2008) (quotation marks omitted). Heredia challenges only 23 the agency’s denial of a continuance and we review that 24 denial “under a highly deferential standard of abuse of 25

2discretion.” Morgan v. Gonzales , 445 F.3d 549, 551 (2d Cir. 1 2006). An IJ “may grant a motion for continuance for good 2 cause shown,” 8 C.F.R. § 1003.29, and we will find an abuse 3 of discretion in denying a continuance only if the judge’s 4 decision “rests on an error of law (such as application of 5 the wrong legal principle) or a clearly erroneous factual 6 finding or [if the] decision – though not necessarily the 7 product of a legal error or a clearly erroneous factual 8 finding – cannot be located within the range of permissible 9 decisions,” Morgan , 445 F.3d at 551-52 (internal quotation 10 marks, brackets, and citation omitted). 11 The IJ did not abuse her discretion in denying 12 Heredia’s request for a continuance. The IJ recognized 13 that, under certain circumstances, a continuance might be 14 warranted to pursue post-conviction relief , but she 15 reasonably explained that Heredia had not established good 16 cause for such a continuance because he had not filed a 17 motion to vacate his conviction or submitted any evidence as 18 to the merit of a challenge to his conviction. See Elbahja 19 v. Keisler , 505 F.3d 125, 129 (2d Cir. 2007) (concluding 20 that an IJ does not abuse his or her discretion by denying a 21 continuance sought to pursue relief that is “speculative at 22

3best”). Furthermore, as the BIA noted, Heredia’s conviction 1 remained final for purposes of his removability. See 2 8 U.S.C. § 1101(a)(48)(A);see also Waugh v. Holder , 642 3 F.3d 1279, 1284 (10th Cir. 2011). 4 Moreover, although we have found it appropriate in 5 certain circumstances to remand for the BIA to define the 6 boundaries of an IJ’s discretion to grant a continuance, 7 remand is not warranted here. See Rajah v. Mukasey, 544 8 F.3d 449, 454-55 (2d Cir. 2008). Indeed, even if we were to 9 remand for the BIA to establish a standard for granting 10 continuances to pursue post-conviction relief under Padilla 11 v. Kentucky, 559 U.S. 356 (2010), Heredia could not 12 demonstrate that the IJ’s decision constituted an abuse of 13 discretion under any standard so established because he 14 failed to submit evidence of a pending motion to vacate 15 based on Padilla. See Elbahja , 505 F.3d at 129. We note 16 that the U.S. Supreme Court’s recent decision in Chaidez v. 17 United States , holding that Padilladoes not apply 18 retroactively to convictions that were already final on 19 direct review when Padillawas issued in 2010, may implicate 20 whether the New York courts would apply Padilla in any post21 conviction proceeding that Heredia might pursue. See 22

4Chaidez v. United States , 133 S. Ct. 1103, 1113 (2013); see 1 also Griffith v. Kentucky, 479 U.S. 314, 321 (1987) 2 (discussing principles of retroactivity); Danforth v. 3 Minnesota , 552 U.S. 264, 266, 282, 291 (2008). Similarly, 4 because Heredia cannot establish that he was prejudiced by 5 the IJ’s denial of his request for a continuance, his due 6 process claims are without merit. See Garcia-Villeda v. 7 Mukasey, 531 F.3d 141, 149 (2d Cir. 2008) (recognizing that 8 an applicant must demonstrate that he was prejudiced to 9 establish a due process violation). 10 For the foregoing reasons, the petition for review is 11

DENIED. 12

13 FOR THE COURT: 14 Catherine O’Hagan Wolfe, Clerk 15 16

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