UNITED STATES CO URT 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 a nd citizen of Tonga who was originally admitted to the United States on a B-2 visi tor 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) te rminated his conditional residence status

* After examining the briefs and appella te record, this pa nel 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### October 30, 2014
Elisabeth A. Shumaker Clerk of Court- 2 - because he had failed to adju st his status to permanent re sidency within two years, as required. On February 4, 2011, Mr. Taufu’i wa s convicted in Utah state court of attempted possession with intent to distri bute methamphetamine, a felony. The DHS issued him a Notice to Appear, charging hi m 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 adju st his status to that of a permanent resident. He requested a ha rdship waiver under 8 U.S.C. § 1186a(c)(4) of the requirement that his petition be file d with his spouse, stating he “entered the marriage in good faith, but the marria ge was terminated through divorce or annulment.” Admin. R. at 83. He asked the immigrati on judge (IJ) to continue the proceedings to provide time for the United States Ci tizenship 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 gran ted him a continuance for adj udication of his I-751, even

1 The IJ determined that he also sought the co ntinuance to give him time to seek post-conviction relief from his felony convic tion in state court, a position Mr. Taufu’i adamantly denied be fore the BIA. See Admin. R. at 14.- 3 - though he did not file the I-751 until after his conditional residency had terminated. The BIA upheld the IJ’s decision, reas oning that “due to his convictions, [Mr. Taufu’i] did not demonstr ate eligibility for ad justment 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 wh ether we have jurisdiction over the petition for review. Mr. Taufu’i admitted th at he was subject to removal because he had committed an aggravated felony. Sec tion 242(a)(2)(C) of the Immigration and Naturalization Act (INA) provides that “no c ourt shall have jurisdiction to review any final order of removal agai nst an alien who is rem ovable 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 alie n’s petition raises “constitutiona l 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] disc retion 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 (10t h Cir. 2011) (stating that aggravated felon alien’s “objection . . . to the way the IJ and BIA exercised their- 4 - discretion” in denying continuance “raises neither a constitutional nor a legal issue, so we are without jurisdic tion to review it.”). Nor has Mr. Taufu’i raised a constitutiona l 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 fashi on that he was denied “a full and fair hearing due to the denial of a continuan ce,” Pet’r’s Opening Br. at 13, and suggests that the failure to grant a continuance robb ed him of “one of the elements deemed essential to due process,” id. at 17 (internal quota tion 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 statutor y construction.” Diallo v. Gonzales , 447 F.3d 1274, 1282 (10th Cir. 2006) (internal quot ation marks omitted). Mr. Taufu’i argues that the IJ and the BI A failed to follow th e BIA’s own precedent
in In re Stowers , 22 I. & N. Dec. 605 (B IA 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- 5 - her waiver application adjudicated by th e 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 eligib ility for adjustment of stat us rather than prima facie eligibility for a 216(c)(4) waiver. Thes e assertions raise questions concerning interpretation and application of the BIA’s precedent, not issues regarding statutory construction. They therefore do not fall w ithin 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 con tinuance because alien’s argument in fact asserted that the IJ and BIA “should ha ve found the circumstances warranted a continuation,” a claim that ra ised neither a constitutional nor a legal issue). The petition for review is dismis sed for lack of jurisdiction.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge