UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

SEMISI TOOFOHE TAUFU’I, 

 Petitioner, 

v. 

ERIC H. HOLDER, JR., United States 

Attorney General, 

 Respondent. 

No. 14-9527 

(Petition for Review)

 

ORDER AND JUDGMENT*

 

Before KELLY, ANDERSON, and TYMKOVICH, Circuit Judges. 

 

 Semisi Toofohe Taufu’i is a native and citizen of Tonga who was originally 

admitted to the United States on a B-2 visitor visa. On December 8, 2006, after he 

married a United States citizen, his status was adjusted to that of conditional resident. 

His marriage ended in divorce on July 14, 2008. Effective December 8, 2008, the 

Department of Homeland Security (DHS) terminated his conditional residence status 

 

*

 After examining the briefs and appellate record, this panel has determined 

unanimously to grant the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

October 30, 2014

Elisabeth A. Shumaker 

Clerk of Court
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because he had failed to adjust his status to permanent residency within two years, as 

required. 

On February 4, 2011, Mr. Taufu’i was convicted in Utah state court of 

attempted possession with intent to distribute methamphetamine, a felony. The DHS 

issued him a Notice to Appear, charging him with being subject to removal because 

his conditional resident status had terminated and because he had been convicted of 

an aggravated felony. He admitted to the factual allegations and charges contained in 

the Notice to Appear. 

During the ensuing removal proceedings, Mr. Taufu’i filed a “Petition to 

Remove Conditions on Residence” (form I-751), seeking to adjust his status to that of 

a permanent resident. He requested a hardship waiver under 8 U.S.C. § 1186a(c)(4) 

of the requirement that his petition be filed with his spouse, stating he “entered the 

marriage in good faith, but the marriage was terminated through divorce or 

annulment.” Admin. R. at 83. He asked the immigration judge (IJ) to continue the 

proceedings to provide time for the United States Citizenship and Immigration 

Services to adjudicate his form I-751.1

 The IJ found no good cause for granting his 

request, denied the continuance, and ordered him removed to Tonga. 

Mr. Taufu’i appealed to the Board of Immigration Appeals (BIA). He argued 

that the IJ should have granted him a continuance for adjudication of his I-751, even 

 

1

 The IJ determined that he also sought the continuance to give him time to seek 

post-conviction relief from his felony conviction in state court, a position Mr. Taufu’i 

adamantly denied before the BIA. See Admin. R. at 14. 
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though he did not file the I-751 until after his conditional residency had terminated. 

The BIA upheld the IJ’s decision, reasoning that “due to his convictions, 

[Mr. Taufu’i] did not demonstrate eligibility for adjustment of status,” and thus “has 

not demonstrated good cause for a continuance.” Id. at 3. Mr. Taufu’i then filed this 

petition for review, asserting that the IJ and the BIA erred in denying him a 

continuance. 

At the outset, we must determine whether we have jurisdiction over the 

petition for review. Mr. Taufu’i admitted that he was subject to removal because he 

had committed an aggravated felony. Section 242(a)(2)(C) of the Immigration and 

Naturalization Act (INA) provides that “no court shall have jurisdiction to review any 

final order of removal against an alien who is removable by reason of having 

committed” an aggravated felony. 8 U.S.C. § 1252(a)(2)(C). An exception is made 

to the extent that the alien’s petition raises “constitutional claims or questions of 

law.” Id. § 1252(a)(2)(D). 

Mr. Taufu’i argues that “[t]he Immigration Judge and the BIA erred as a 

matter of law and abused [their] discretion when denying [his] motion for a 

continuance.” Pet’r’s Opening Br. at 12. To the extent he challenges the denial of a 

continuance as an abuse of discretion, we plainly lack jurisdiction to review his 

argument. See Waugh v. Holder, 642 F.3d 1279, 1285 (10th Cir. 2011) (stating that 

aggravated felon alien’s “objection . . . to the way the IJ and BIA exercised their 
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discretion” in denying continuance “raises neither a constitutional nor a legal issue, 

so we are without jurisdiction to review it.”). 

Nor has Mr. Taufu’i raised a constitutional issue that falls within the exception 

provided in § 1252(a)(2)(D). To obtain review of the BIA’s denial of relief, he must 

present a “substantial constitutional issue” for our review. Alvarez–Delmuro v. 

Ashcroft, 360 F.3d 1254, 1256 (10th Cir. 2004) (internal quotation marks omitted). 

Although he contends in conclusory fashion that he was denied “a full and fair 

hearing due to the denial of a continuance,” Pet’r’s Opening Br. at 13, and suggests 

that the failure to grant a continuance robbed him of “one of the elements deemed 

essential to due process,” id. at 17 (internal quotation marks omitted), these 

assertions fail to present a substantial constitutional issue, see Waugh, 642 F.3d at 

1284 (rejecting petitioner’s attempt to “frame [his] argument” for a continuance “as a 

denial of due process.”). 

Finally, Mr. Taufu’i has not raised a question of law for our review. The 

phrase “questions of law” in § 1252(a)(2)(D) does not refer to all legal issues, but 

only to “a narrow category of issues regarding statutory construction.” Diallo v. 

Gonzales, 447 F.3d 1274, 1282 (10th Cir. 2006) (internal quotation marks omitted). 

Mr. Taufu’i argues that the IJ and the BIA failed to follow the BIA’s own precedent 

in In re Stowers, 22 I. & N. Dec. 605 (BIA 1999), which holds that “where an alien is 

prima facie eligible for a [hardship] waiver under section 216(c)(4) of the 

[Immigration and Nationality] Act [8 U.S.C. § 1186a(c)(4)] and wishes to have his or 
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her waiver application adjudicated by the Service, the proceedings should be 

continued in order to allow the Service to adjudicate the waiver application.” Id. at 

613-14. He further argues that the BIA erred under Stowers by requiring him to 

demonstrate prima facie eligibility for adjustment of status rather than prima facie 

eligibility for a 216(c)(4) waiver. These assertions raise questions concerning 

interpretation and application of the BIA’s precedent, not issues regarding statutory 

construction. They therefore do not fall within the exception for “questions of law” 

in § 1252(a)(2)(D). See Waugh, 642 F.3d at 1284-85 (rejecting claim that BIA 

ignored its own precedents in denying a continuance because alien’s argument in fact 

asserted that the IJ and BIA “should have found the circumstances warranted a 

continuation,” a claim that raised neither a constitutional nor a legal issue). 

The petition for review is dismissed for lack of jurisdiction. 

 Entered for the Court 

 Paul J. Kelly, Jr. 

 Circuit Judge