NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 17-1502

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KLEVER ARMANDO PILATAXI TENEMAZA,

Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA,

Respondent

______________

On Petition for Review of a Decision

and Order of the Board of Immigration Appeals

(BIA No. A088-219-715)

Immigration Judge: Annie S. Garcy 

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Submitted under Third Circuit L.A.R. 34.1(a)

October 26, 2017

BEFORE: GREENAWAY, JR., COWEN, Circuit Judges

and PADOVA, District Judge*

(Filed: November 30, 2017)

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OPINION**

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* The Honorable John R. Padova, Senior United States District Judge for the Eastern 

District of Pennsylvania, sitting by designation.

** This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7

does not constitute binding precedent.
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COWEN, Circuit Judge.

Klever Armando Pilataxi Tenemaza petitions for review of a decision by the 

Board of Immigration Appeals (“BIA”), which dismissed his appeal from an order of the 

Immigration Judge (“IJ”) denying his motion for a continuance as well as his application 

for cancellation of removal. We will dismiss the petition in part and deny it in part.

I.

Pilataxi Tenemaza, a native and citizen of Ecuador, entered the United States 

without admission or inspection. Pilataxi Tenemaza (who was represented by counsel) 

conceded the charge of removability. He also filed an application for cancellation of 

removal, claiming that his United States citizen son would suffer exceptional and 

extremely unusual hardship should his father be removed to Ecuador. On March 2, 2012, 

the merits hearing was scheduled for March 3, 2014. The IJ told counsel to “make every 

effort to get the majority of the evidence filed, say, a year ahead of time and then if you 

need to supplement, no problem.” (AR86.)

At the merits hearing, Pilataxi Tenemaza asked for an adjournment in order to 

obtain evidence. The IJ denied the motion in an interlocutory oral decision as well as her 

subsequent written disposition. The IJ also denied the underlying application for 

cancellation of removal. 

The BIA dismissed Pilataxi Tenemaza’s administrative appeal. It specifically 

agreed with the IJ that Pilataxi Tenemaza failed to demonstrate the good cause required 

for a continuance. See, e.g., 8 C.F.R. §§ 1003.29, 1240.6. The BIA also affirmed the IJ’s 
3

finding that Pilataxi Tenemaza did not show that his removal would result in exceptional 

and extremely unusual hardship to his son. 

Pilataxi Tenemaza submitted a “Petition for Review and Complaint for Injunctive 

Relief and Declaratory Relief” (JA3 (emphasis omitted)) as well as a motion for a stay of 

removal. The government moved to dismiss on jurisdictional grounds. This Court 

denied the stay motion and referred the dismissal motion to the merits panel. 

II.

We must dismiss the petition for review insofar as Pilataxi Tenemaza challenges 

the agency’s disposition of his application for cancellation of removal. “We lack 

jurisdiction to review discretionary decisions made pursuant to 8 U.S.C. § 1229b, 

including ‘exceptional and extremely unusual’ hardship determinations.” Patel v. 

Attorney General, 619 F.3d 230, 232 (3d Cir. 2010) (citing 8 U.S.C. § 1252(a)(2)(B)(i); 

Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 179 (3d Cir. 2003)). While we retain 

jurisdiction over constitutional claims and questions of law, see, e.g., 8 U.S.C. § 

1252(a)(2)(D); Patel, 619 F.3d at 232, Pilataxi Tenemaza does not articulate any legal or 

constitutional claims with respect to the application for cancellation of removal. Instead, 

he contends that the agency abused its discretion and incorrectly found that his son would 

not suffer exceptional and extremely unusual hardship. However, it is well established 

that arguments that an IJ or the BIA incorrectly weighed or failed to consider the 
4

evidence do not present constitutional claims or legal questions.1 See, e.g., Jarbough v. 

Attorney General, 483 F.3d 184, 189 (3d Cir. 2007). 

We next turn to Piltataxi Tenemaza’s challenge concerning the motion for 

continuance.2 According to Pilataxi Tenemaza, the BIA abused its discretion and 

infringed his due process rights by not allowing him a continuance to obtain evidence in 

support of his cancellation application. As the BIA recognized, “[t]o establish good 

cause based upon a request for an opportunity to obtain and present additional evidence, 

the respondent must make a reasonable showing that the lack of preparation occurred 

despite a diligent good faith effort to be ready to proceed and that the additional evidence 

is ‘probative, noncumulative, and significantly favorable’ to him.” (AR3 (quoting 

Sibrun, 18 I. & N. Dec. 354, 356 (BIA 1983)).) “Aliens are ‘entitled to a full and fair 

hearing of [their] claims and a reasonable opportunity to present evidence,’” but, in order 

to prevail on a due process claim, the alien must establish substantial prejudice. See, e.g., 

 

1 Likewise, we must dismiss the putative “Complaint for Injunctive Relief and 

Declaratory Relief.” 

2 Pilataxi Tenemaza indicates that the denial of his continuance motion constituted 

a discretionary decision that this Court generally lacks the jurisdiction to review. He then 

goes on to proffer a constitutional due process challenge to this disposition. However, we 

do have jurisdiction to review this ruling in this context. See, e.g., Khan v. Attorney 

General, 448 F.3d 226, 229-33 (3d Cir. 2006) (concluding that 8 U.S.C. § 

1252(a)(2)(B)(ii) does not deprive court of appeals of jurisdiction over decision on 

continuance motion). The government states that we “arguably” lack jurisdiction, but 

(contrary to the government’s characterization) this is not a case where the BIA “provides 

two alternative grounds for denying relief.” (Respondent’s Brief at 17 n.1 (quoting 

Rodas-Leon v. Attorney General, 475 F. App’x 430, 432 (3d Cir. 2012) (per curiam)).)

The parties agree that we review the BIA’s decision affirming the IJ’s denial of the 

continuance motion for abuse of discretion. See, e.g., Syblis v. Attorney General, 763 

F.3d 348, 352 (3d Cir. 2014); Ponce-Leiva v. Ashcroft, 331 F.3d 369, 374-77 (3d Cir. 

2003). 
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Singh v. Gonzales, 432 F.3d 533, 541 (3d Cir. 2006) (quoting Chong v. Dist. Dir., INS, 

264 F.3d 378, 386 (3d Cir. 2001)). We conclude that the agency neither abused its 

discretion nor violated the Due Process Clause of the Fifth Amendment. 

The BIA properly upheld the IJ’s finding of a lack of due diligence. Pilataxi 

Tenemaza “had more than 2 years to submit evidence in support of his application and 

was specifically instructed on March 2, 2012, to submit the majority of the evidence in 

support of his case 1 year in advance of his March 3, 2014, hearing.” (AR3 (citing 

AR65-AR66, AR86, AR89-AR90).) Pilataxi Tenemaza contends that “he was unable to 

obtain documents from his house because he was under a restraining order 6 months prior 

to his March 3, 2014 hearing, from August until December 2012” and his wife would not 

cooperate. (Petitioner’s Brief at 9 (citing AR3, AR119).) However, he did not ask for a 

continuance at that time, even though he was represented by counsel. Instead, he waited 

months until the merits hearing itself to ask for more time. Pilataxi Tenemaza 

acknowledges that “Petitioner could have requested the continuance ahead of time,” and, 

in turn, he provides no real explanation for why unspecified “communication issues” with 

his attorney (which purportedly “may” have prevented him from knowing that a request 

could have been made in advance) indicated that he nevertheless exercised due diligence 

in this matter or established that he was thereby deprived a fair hearing or a reasonable 

opportunity to present evidence. (Id. at 10 (citing AR96).)

In any event, the BIA went on to state that Pilataxi Tenemaza “has not articulated 

on appeal how the additional evidence he sought to present is ‘probative, noncumulative, 

and significantly favorable’ to him or how the denial of his request for a continuance 
6

caused him actual prejudice and harm and materially affected the outcome of his case 

([AR12-AR14]).” (AR4 (citing Sibrun, 18 I. & N. Dec. at 356-57).) In fact, Pilataxi 

Tenemaza does not identify the actual evidence that he would have presented if his 

motion for a continuance had been granted. Accordingly, he cannot establish the 

evidence’s probative value or prejudice.3

III.

For the foregoing reasons, we will dismiss Pilataxi Tenemaza’s petition for review 

insofar as we lack jurisdiction to review the agency’s hardship determination. Otherwise, 

we will deny his petition for review.4

 

3 Purportedly, it would have been “judicially prudent” to grant a short continuance 

because Pilataxi Tenemaza’s wife appeared for his final hearing and they were again on 

speaking terms. (Petitioner’s Brief at 10 (“At the very least, once testimony was taken, in 

order to afford Petitioner the benefit of the doubt, the IJ could have requested specific 

documents limited to the hardship Petitioner had testified to.”).) However, the absence of 

so-called “judicial prudence” does not rise to the level of either an abuse of discretion or 

a constitutional violation. 

4 We accordingly grant the motion to dismiss with respect to the hardship

determination (as well as the “Complaint for Injunctive Relief and Declaratory Relief”). 

Otherwise, we deny the motion.