10-1822-ag Polanco v. Holder



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER**
**FILED ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W**  **HEN CITING A SUMMARY**
**ORDER IN A DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX 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 Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 26 th** **day of September, two thousand eleven.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **Chief Judge ,**  7 **ROGER J. MINER,** 8 **ROBERT A. KATZMANN,** 9 **Circuit Judges**

**.** 10 11 - - - - - - - - - - - - - - - - - - - -X 12 **VIRGILIO POLANCO,** 13 **Petitioner ,**  14 15 **-v.- 10-1822-ag** 16 17 **ERIC H. HOLDER, Jr.,** 18 **Respondent**

**.** 19 - - - - - - - - - - - - - - - - - - - -X 20 21 **FOR PETITIONER:** Albania C. Almanzar, Albania C. Almanzar, 22 P.C., New York, New York. 23 24 **FOR RESPONDENT:** John J. Inkeles, Trial Attorney (Francis 25 W. Fraser, Senior Litigation Counsel, 26 Carl H. McIntyre, Jr., Assistant 27 Director, on the brief ), forTony West, 28 Assistant Attorney General, Office of 29Immigration Litigation, United States 1 Department of Justice, Washington, D.C. 2 3 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 4 **AND DECREED**that the petition for review of a Board of 5 Immigration Appeals decision is **GRANTED**and the case is 6
**REMANDED**to the Board of Immigration Appeals. 7 8 Petitioner Virgilio Polanco (“Polanco”) seeks review of 9 an April 13, 2010 order of the Board of Immigration Appeals 10 (“BIA”) dismissing Polanco’s appeal from an April 24, 2009 11 decision of Immigration Judge (“IJ”) Alan Vomacka: 12 (1) denying Polanco’s application for waiver of removability 13 under § 212(c) of the Immigration and Nationality Act 14 (“INA”), 8 U.S.C. § 1182; (2) denying Polanco’s motion for a 15 continuance to give Polanco more time to seek an adjustment 16 of status; and (3) ordering Polanco removed to the Dominican 17 Republic. We assume the parties’ familiarity with the 18 underlying facts, the procedural history, and the issues 19 presented for review. 20 21 We have jurisdiction to review final orders of removal 22 pursuant to 8 U.S.C. § 1252(a)(1). However, we lack 23 “jurisdiction to review any final order of removal against 24 an alien who is removable by reason of having committed a 25 criminal offense covered in section [1227(a)(2)(A)(iii) 26 (aggravated felony) or section 1227(a)(2)(C) (unlawful 27 possession of a firearm)].” 8 U.S.C. § 1252(a)(2)(C). 28 Notwithstanding this jurisdictional bar, we would have 29 jurisdiction to review “constitutional claims or questions 30 of law.” 8 U.S.C. § 1252(a)(2)(D). 31 32 Polanco raises no argument with respect to the 33 determination that he is removable as an aggravated felon 34 and as a felon convicted of a firearm offense. Any such 35 challenge is deemed abandoned. See Yueqing Zhang v. 36 Gonzales , 426 F.3d 540, 541 n.1 (2d Cir. 2005); see also 37 Norton v. Sam’s Club , 145 F.3d 114, 117 (2d Cir. 1998) 38 (“Issues not sufficiently argued in the briefs are 39 considered waived and normally will not be addressed on 40 appeal.”). 41 42 The only issue briefed by Polanco in this Court is 43 whether the IJ abused his discretion in denying Polanco’s 44

2motion for a continuance. See Sanusi v. Gonzales , 445 F.3d 1 193, 199 (2d Cir. 2006) (holding “that 8 U.S.C. 2 § 1252(a)(2)(B)(ii) does not deprive [this Court] of 3 jurisdiction to review decisions by IJs to grant or to deny 4 continuances” and that we review an IJ’s grant or denial of 5 a continuance for abuse of discretion). An IJ abuses his 6 discretion in denying a continuance if “(1) [his] decision 7 rests on an error of law (such as application of the wrong 8 legal principle) or a clearly erroneous factual finding or 9 (2) [his] decision--though not necessarily the product of a 10 legal error or a clearly erroneous factual finding--cannot 11 be located within the range of permissible decisions.” 12 Zervos v. Verizon New York, Inc. , 252 F.3d 163, 169 (2d Cir. 13 2001) (footnote omitted). Therefore, the only way for 14 Polanco to avoid the jurisdictional bar of § 1252(a)(2)(C) 15 is if the IJ’s decision rested on a legal error. 16 17 Although the IJ acknowledged that he may have had the 18 authority to delay Polanco’s removal proceeding for a brief 19 period in order for Polanco’s wife to obtain citizenship and 20 to file an I-130 visa petition on Polanco’s behalf, **A 56** , he 21 was unaware of any “rule from the [BIA] and also recognized 22 and generally accepted by the higher courts” that would 23 permit him to delay the proceeding for more than a year to 24 give Polanco’s wife more time to obtain citizenship. **A 56**

. 25 In Drax v. Reno , this Court acknowledged that an immigration 26 judge “has broad discretion to adjourn proceedings in order 27 to enable an alien to file the necessary paperwork to seek 28 various kinds of relief,” and indeed observed that a 29 “willing” IJ could grant a fifteen-month continuance. 338 30 F.3d 98, 117 & n.25 (2d Cir. 2003); see also Freire v. 31 Holder , 647 F.3d 67, 70 (2d Cir. 2011) (holding that 32 “Immigration Judges have broad discretionary authority to 33 grant a motion for continuance for good cause shown” 34 (internal quotation marks omitted)). 35 36 In view of our observation in Drax , we remand to the 37 BIA for it to determine whether the IJ had discretion, in 38 the circumstances of this case, to grant a continuance. See 39 Matter of Hashmi , 24 I. & N. Dec. 785, 790-91 (B.I.A. 2009) 40 (articulating standards for determining a motion for 41 continuance). If so, the BIA will remand for the IJ to 42 decide if he would have exercised such discretion. 43 44

3For the foregoing reasons, the petition for review is 1 **GRANTED**and the case is **REMANDED**to the BIA. 2 3 4 FOR THE COURT: 5 CATHERINE O’HAGAN WOLFE, CLERK 6 7 8 9

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