10-1822-ag

Polanco v. Holder

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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

New York, on the 26th 4 day of September, two thousand eleven.

5

6 PRESENT: DENNIS JACOBS,

7 Chief Judge,

8 ROGER J. MINER,

9 ROBERT A. KATZMANN,

10 Circuit Judges.

11

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13 VIRGILIO POLANCO, 

14 Petitioner,

15

16 -v.- 10-1822-ag

17

18 ERIC H. HOLDER, Jr.,

19 Respondent.

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21

22 FOR PETITIONER: Albania C. Almanzar, Albania C. Almanzar,

23 P.C., New York, New York.

24

25 FOR RESPONDENT: John J. Inkeles, Trial Attorney (Francis

26 W. Fraser, Senior Litigation Counsel,

27 Carl H. McIntyre, Jr., Assistant

28 Director, on the brief), for Tony West,

29 Assistant Attorney General, Office of
1 Immigration Litigation, United States

2 Department of Justice, Washington, D.C.

3

4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

5 AND DECREED that the petition for review of a Board of

6 Immigration Appeals decision is GRANTED and the case is

7 REMANDED to the Board of Immigration Appeals.

8

9 Petitioner Virgilio Polanco (“Polanco”) seeks review of

10 an April 13, 2010 order of the Board of Immigration Appeals

11 (“BIA”) dismissing Polanco’s appeal from an April 24, 2009

12 decision of Immigration Judge (“IJ”) Alan Vomacka:

13 (1) denying Polanco’s application for waiver of removability

14 under § 212(c) of the Immigration and Nationality Act

15 (“INA”), 8 U.S.C. § 1182; (2) denying Polanco’s motion for a

16 continuance to give Polanco more time to seek an adjustment

17 of status; and (3) ordering Polanco removed to the Dominican

18 Republic. We assume the parties’ familiarity with the

19 underlying facts, the procedural history, and the issues

20 presented for review.

21

22 We have jurisdiction to review final orders of removal

23 pursuant to 8 U.S.C. § 1252(a)(1). However, we lack

24 “jurisdiction to review any final order of removal against

25 an alien who is removable by reason of having committed a

26 criminal offense covered in section [1227(a)(2)(A)(iii)

27 (aggravated felony) or section 1227(a)(2)(C) (unlawful

28 possession of a firearm)].” 8 U.S.C. § 1252(a)(2)(C). 

29 Notwithstanding this jurisdictional bar, we would have

30 jurisdiction to review “constitutional claims or questions

31 of law.” 8 U.S.C. § 1252(a)(2)(D).

32

33 Polanco raises no argument with respect to the

34 determination that he is removable as an aggravated felon

35 and as a felon convicted of a firearm offense. Any such

36 challenge is deemed abandoned. See Yueqing Zhang v.

37 Gonzales, 426 F.3d 540, 541 n.1 (2d Cir. 2005); see also

38 Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998)

39 (“Issues not sufficiently argued in the briefs are

40 considered waived and normally will not be addressed on

41 appeal.”).

42

43 The only issue briefed by Polanco in this Court is

44 whether the IJ abused his discretion in denying Polanco’s

2
1 motion for a continuance. See Sanusi v. Gonzales, 445 F.3d

2 193, 199 (2d Cir. 2006) (holding “that 8 U.S.C.

3 § 1252(a)(2)(B)(ii) does not deprive [this Court] of

4 jurisdiction to review decisions by IJs to grant or to deny

5 continuances” and that we review an IJ’s grant or denial of

6 a continuance for abuse of discretion). An IJ abuses his

7 discretion in denying a continuance if “(1) [his] decision

8 rests on an error of law (such as application of the wrong

9 legal principle) or a clearly erroneous factual finding or

10 (2) [his] decision--though not necessarily the product of a

11 legal error or a clearly erroneous factual finding--cannot

12 be located within the range of permissible decisions.” 

13 Zervos v. Verizon New York, Inc., 252 F.3d 163, 169 (2d Cir.

14 2001) (footnote omitted). Therefore, the only way for

15 Polanco to avoid the jurisdictional bar of § 1252(a)(2)(C)

16 is if the IJ’s decision rested on a legal error.

17

18 Although the IJ acknowledged that he may have had the

19 authority to delay Polanco’s removal proceeding for a brief

20 period in order for Polanco’s wife to obtain citizenship and

21 to file an I-130 visa petition on Polanco’s behalf, A 56, he

22 was unaware of any “rule from the [BIA] and also recognized

23 and generally accepted by the higher courts” that would

24 permit him to delay the proceeding for more than a year to

25 give Polanco’s wife more time to obtain citizenship. A 56. 

26 In Drax v. Reno, this Court acknowledged that an immigration

27 judge “has broad discretion to adjourn proceedings in order

28 to enable an alien to file the necessary paperwork to seek

29 various kinds of relief,” and indeed observed that a

30 “willing” IJ could grant a fifteen-month continuance. 338

31 F.3d 98, 117 & n.25 (2d Cir. 2003); see also Freire v.

32 Holder, 647 F.3d 67, 70 (2d Cir. 2011) (holding that

33 “Immigration Judges have broad discretionary authority to

34 grant a motion for continuance for good cause shown”

35 (internal quotation marks omitted)). 

36

37 In view of our observation in Drax, we remand to the

38 BIA for it to determine whether the IJ had discretion, in

39 the circumstances of this case, to grant a continuance. See

40 Matter of Hashmi, 24 I. & N. Dec. 785, 790-91 (B.I.A. 2009)

41 (articulating standards for determining a motion for

42 continuance). If so, the BIA will remand for the IJ to

43 decide if he would have exercised such discretion.

44

3
1 For the foregoing reasons, the petition for review is

2 GRANTED and the case is REMANDED to the BIA.

3

4

5 FOR THE COURT:

6 CATHERINE O’HAGAN WOLFE, CLERK

7

8

9

4