1 18-82 Greiven Valverde-Urena v. Barr

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT



## SUMMARY ORDER

Rulings by summary order do not have precedential effect. Cita tion to a summary order filed on or after January 1, 2007, is permitted a nd 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 mu st cite either the Federal Appendix or an electronic database (with the notation “summa ry 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 Cour t 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 9 th day of April, two thousand nineteen.

PRESENT: J OHN M. W ALKER , J R ., J OSÉ A. C ABRANES , R OBERT D. S ACK , Circuit Judges.

L UIS G REIVEN V ALVERDE -U RENA ,

Petitioner
, 18-82

v.

W ILLIAM P. B ARR , U NITED S TATES A TTORNEY G ENERAL ,
Respondent

. *

* The Clerk of Court is directed to amend the caption as set out above.2 FOR PETITIONER: Jose Perez, Syracuse, NY.

FOR RESPONDENT: Andrew Oliveira, Trial Attorney (Joseph H. Hunt, Assistant Attorney General, Carl McIntyre, Assistant Director, on the brief ), Office of Immigration Litigation, Civil Division, U.S Department of Justice, Washington, D.C.

Petition for review of an order of the Board of Immigration Appeals.

UPON DUE CONSIDERATION WHEREO F, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED.
Petitioner Luis Greiven Valverde-Urena (“Petiti oner”), a native and citizen of Costa Rica, seeks review of a December 11, 2017, decision of the Board of Immigration Appeals (“BIA”) dismissing his appeal of a March 8, 2017 decisi on of an Immigration Judg e (“IJ”) ordering his removal and denying his request for a continuance. In re Luis Greiven Valverde-Urena, No. A 205 703 292 (B.I.A. Dec. 11, 2017), aff’g No. A 205 703 292 (Immig. Ct. Buffa lo Mar. 8, 2017). We assume the parties’ familiarity with the underlying facts, th e procedural history of the case, and the issues on appeal.
We review an IJ’s denial of a continuance “und er a highly deferential standard of abuse of discretion.” Morgan v. Gonzales , 445 F.3d 549, 551 (2d Cir. 2006). We will, however, find an IJ to have abused his discretion in denying a continuance if “( 1) his decision rests on an error of law (such as application of the wrong legal principle) or a clea rly erroneous factual finding or (2) his decision— though not necessarily the product of a legal error or a clearly erroneous factual finding—cannot be located within the range of permissible decisions.” Id. at 551-52 (internal citations and brackets omitted). On appeals from the BIA, we review find ings of fact under the “substantial evidence” standard. Chen v. Gonzales , 417 F.3d 268, 271 (2d Cir. 2005).
An IJ “may grant a motion for continuance for good cause shown.” 8 C.F.R. § 1003.29. According to BIA precedent, to successfu lly challenge the denial of a continuance, “an alien at least must make a reasona ble showing that the lack of prep aration occurred despite a diligent good faith effort to be ready to proceed and that . . . [the] denial caused him actual prejudice and harm and materially affected the outcome of his case.” Matter of Sibrun , 18 I. & N. Dec. 354, 356-57 (B.I.A. 1983).
Petitioner argues that the IJ should have granted an (additional) continuance to permit him time to prepare a written motion to suppress the Form I-213. Br. Petitioner 10. Petitioner argues that he required additional time to file this moti on because a new President of the United States was3 elected four months previously and had recentl y implemented new enforcement priorities. Id. Moreover, had he been granted a continuance, Petitioner argues, the Form I-213 would have been suppressed due to an egregious violation of the Fourth Amendment. Id.

After review of the whole record, we reject Petitioner’s arguments.
First, we agree with the BIA’s conclusion that Petitioner did not demonstrate “good cause” for such a continuance “in view of his prior admiss ion of the factual allegations and concession of removability upon the advice of counsel.” B.I.A. Order at 2. As we have previously explained, absent “egregious circumstances, [an alien] re mains bound by his attorney’s concession of removability.” Hoodho v. Holder , 558 F.3d 184, 193 (2d Cir. 2009) . Moreover, where an “IJ accepts a concession of removability from retained counsel and that concession is not contradicted by the record evidence, the circumstances are not egregious” Id. at 192 (internal quotation marks omitted). Similarly, “tactical decisions that ultimately fizzl e” and ordinary mistakes are not considered egregious errors. Id. at 193. Here, Petitioner does not claim his counsel’s conduct was egregious or that his concession is contradicted by record evid ence. Admin. Rec. 104. Accordingly, Petitioner’s prior admissions and concession remain in force, and so a continuance would have served no purpose.
Second, we agree with the BIA’s conclusion that Petitioner did not demonstrate “good cause” for such a continuance in light of his exten sive opportunity for preparat ion. At the time of the final hearing in March 2017, about two years ha d elapsed since Petitioner was first served with the Form I-213. Admin Rec. 68, 115-20. Petitioner was represented by counsel at the May 2015 hearing, and counsel acknowledged service of the document. Id. at 68. While Petitioner’s counsel explained that he did not file a motion to su ppress earlier because he had been pursuing prosecutorial discretion, that failed tactical decisi on does not explain why counsel was not prepared in the event of a denial. Peti tioner therefore did not demonstrate that his lack of preparation occurred despite a “good faith effort to be ready to proceed.” Matter of Sibrun , 18 I. & N. Dec. at 356.
Finally, Petitioner did not demonstrate prejudi ce because he offered no sustainable basis for the suppression of Form I-213. Suppression of evid ence in removal proceedings is warranted if there has been an egregious and fundamentally unfair Fourth Amendment violation or where a Fourth Amendment violation undermined the reliability of the evidence. See Almeida-Amaral v. Gonzales , 461 F.3d 231, 235 (2d Cir. 2006); see also INS v. Lopez-Mendoza , 468 U.S. 1032, 1050-51 (1984). As we have previously explained, an a lien challenging the admissibility of evidence in removal proceedings “must come forward with proof establishing a prima facie case” for suppression. Cotzojay v. Holder , 725 F.3d 172, 178 (2d Cir. 2013) (quoting Matter of Barcenas, 19 I. & N. Dec. 609, 611 (B.I.A.1988). Such a prima facie case re quires, at the least, an affidavit (and eventually, testimony). Id. Here, Petitioner presented no such prima facie case; in fact, Petitioner presented no evidence at all. Counsel’s asserti ons that Petitioner was initially st opped by police due to his race are,4 in fact, inconsistent with the account in Form I-213 and unsupported by any other evidence. Br. Petitioner at 23, Admin Rec. 117. Accordingly, there was no basis for suppression, and thus no prejudice from the lack of continuance.

CONCLUSION
For the foregoing reasons, the petition for review is DENIED

.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk