2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-26-2011

Paul Holder v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-2160

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-2160

___________

PAUL ALGERNON HOLDER,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A036-705-602)

Immigration Judge: Honorable Andrew Arthur

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

August 26, 2011

Before: JORDAN, GARTH and BARRY, Circuit Judges

(Opinion filed: August 26, 2011 )

___________

OPINION

___________

PER CURIAM

Paul Holder, proceeding pro se, petitions for review of the Board of Immigration 

Appeals’ (“BIA”) order upholding the Immigration Judge’s (“IJ”) orders directing his 

removal, denying his request for a continuance, and denying his motion for 
2

reconsideration. For the reasons that follow, we will deny the petition for review.

I

Holder, a citizen of Guyana and a lawful permanent resident of the United States, 

was placed in removal proceedings based on a 2010 aggravated felony conviction. At his 

first appearance before the IJ, Holder requested a continuance to obtain counsel, which 

the IJ granted. In November 2010, Holder appeared before the IJ with counsel. Holder 

conceded removability and did not seek relief from removal, but asked the IJ for another 

continuance pending resolution of his state court petition for post-conviction relief 

(“PCR”). The IJ denied Holder’s request for a continuance and ordered him removed to 

Guyana.

Holder thereafter filed with the IJ a timely motion to reopen, which the IJ also 

construed as a motion to reconsider, arguing that his request for a continuance during his 

PCR proceedings should have been granted, particularly in light of an upcoming 

evidentiary hearing. The IJ denied the motion, reasoning that Holder failed to present 

previously unavailable information, and Holder appealed. The BIA dismissed his appeal, 

and Holder timely filed this petition for review.

II

We have jurisdiction pursuant to 8 U.S.C. § 1252(a). Because the BIA issued its 

own opinion, we review its decision rather than the IJ’s. See Li v. Att’y Gen., 400 F.3d 

157, 162 (3d Cir. 2005). However, we look to the decision of the IJ to the extent that the 

BIA deferred to or adopted the IJ’s reasoning. See Chavarria v. Gonzalez, 446 F.3d 508, 
3

515 (3d Cir. 2006). 

The thrust of Holder’s argument is that the IJ erred in denying his request for a 

continuance. We have jurisdiction to review an IJ’s decision to deny a continuance, and 

do so for an abuse of discretion. See Khan v. Att’y Gen., 448 F.3d 226, 233 (3d Cir. 

2006). That question is resolved on a case-by-case basis, and the IJ’s decision should be 

reversed only if it was arbitrary, irrational, or contrary to law. See id. Further, the 

pendency of a post-conviction motion does not negate the finality of a conviction for 

immigration purposes. See Paredes v. Att’y Gen., 528 F.3d 196, 198-99 (3d Cir. 2008). 

The IJ reasoned, and the BIA agreed, that neither the pendency of Holder’s PCR petition

nor the fact of his upcoming PCR evidentiary hearing constituted good cause to warrant a 

second continuance. Given that Holder’s likelihood of success in PCR proceedings was 

speculative, and that the validity of his conviction had not otherwise been called into 

question, we are not persuaded that the IJ’s decision was arbitrary, irrational, or contrary 

to law. Our decision in this case does not foreclose the possibility that an Immigration 

Judge could, in his discretion, grant a continuance on such a basis. However, that 

possibility does not render the IJ’s decision an abuse of discretion, and we must decline 

Holder’s invitation to mandate that, in all cases, the Agency find good cause for a 

continuance whenever an alien is scheduled to testify at a PCR evidentiary hearing.

Relatedly, Holder argued that he had a substantive due process right under 

Pennsylvania law to testify at his PCR evidentiary hearing, and that the IJ violated his 

right to due process under the Fifth Amendment to the United States Constitution by 
4

ordering his removal and denying his request for a continuance, thus creating the 

possibility that he would be removed before testifying. To prevail on this argument, 

Holder must demonstrate that he was substantially prejudiced by the IJ’s decision. See

Khan, 448 F.3d at 236. He cannot: as Holder noted in his brief to the BIA, he testified at 

the PCR hearing notwithstanding the IJ’s decision, and thus was not prejudiced for want 

of a continuance.

Accordingly, we will deny the petition for review.