UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-1351

ERWIN RUBEN CESPEDES,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

No. 13-1737

ERWIN RUBEN CESPEDES,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

On Petitions for Review of Orders of the Board of Immigration 

Appeals.

Submitted: September 27, 2013 Decided: October 11, 2013

Before WILKINSON, KEENAN, and WYNN, Circuit Judges.

Petitions denied by unpublished per curiam opinion.
2

Randall L. Johnson, JOHNSON & ASSOCIATES, P.C., Arlington, 

Virginia, for Petitioner. Stuart F. Delery, Assistant Attorney 

General, Jennifer L. Lightbody, Senior Litigation Counsel, Aimee 

J. Carmichael, Office of Immigration Litigation, UNITED STATES 

DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.
3

PER CURIAM:

Erwin Ruben Cespedes, a native and citizen of Bolivia, 

petitions for review of orders of the Board of Immigration 

Appeals (“Board”) sustaining in part and dismissing in part his 

appeal from the immigration judge’s order finding that he was 

removable and not eligible for cancellation of removal and 

denying the motion for reconsideration. We deny the petitions 

for review.

Under 8 U.S.C. § 1227(a)(2)(B)(i) (2006), an alien at 

any time after admission who is convicted of an offense relating 

to a controlled substance, “other than a single offense 

involving possession for one’s own use of 30 grams or less of 

marijuana,” is removable. The Board agreed with the immigration 

judge’s finding that Cespedes’ conviction for possession of 

marijuana with intent to sell, give or distribute, in violation 

of Va. Code Ann. § 18.2-248.1 (2009), was a controlled substance 

offense and that it was not a conviction that could include 

possession of marijuana for one’s own use. 

“When the issue on appeal ‘turns on an interpretation 

of the [Immigration and Nationality Act] — a statute that the 

BIA administers — we afford the BIA deference under the familiar 
4

Chevron* standard.’” Cervantes v. Holder, 597 F.3d 229, 232 (4th 

Cir. 2010) (quoting Midi v. Holder, 566 F.3d 132, 136 (4th Cir.

2009)). Under Chevron, “the plain meaning of the statute 

controls if the provision in question is unambiguous.” 

Saintha v. Mukasey, 516 F.3d 243, 251 (4th Cir. 2008). If, 

however, “the statute is silent or ambiguous with respect to the 

specific issue before us, the question for this court becomes 

whether the BIA’s interpretation ‘is based on a permissible 

construction of the statute.’” Id. (quoting Chevron, 467 U.S. 

at 843).

The “personal use” exception on which petitioner 

relies “is directed at ameliorating the potentially harsh 

immigration consequences of the least serious drug violations 

only — that is, those involving the simple possession of small 

amounts of marijuana.” Matter of Moncada-Servellon, 24 I. & N. 

Dec. 62, 65 (BIA 2007) (conviction for possession of marijuana 

in a prison did not qualify for the personal use exception). 

The exception is not intended to apply to offenses that are 

significantly more serious than simple possession “by virtue of 

other statutory elements that greatly increase their severity.” 

Id.

 * Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 

467 U.S. 837 (1984).
5

We conclude that the Board did not err in finding that 

Cespedes’ conviction was a controlled substance offense that did 

not include the possibility that he was convicted of possessing 

marijuana for his own use. We note that the statute includes 

elements that increase the severity of the offense beyond mere 

simple possession. 

Because Cespedes is an alien who was found removable 

for having been convicted of a controlled substance offense, we 

lack jurisdiction, except as provided in 8 U.S.C. 

§ 1252(a)(2)(D) (2006), to review the final order of removal. 

See 8 U.S.C. § 1252(a)(2)(C). Under 8 U.S.C. § 1252(a)(2)(D), 

we can only consider “constitutional claims or questions of 

law.” § 1252(a)(2)(D); see Turkson v. Holder, 667 F.3d 523, 527 

(4th Cir. 2012).

Cespedes argues that the immigration judge abused his 

discretion by denying his motion for continuance to pursue a 

collateral attack of his underlying conviction based on 

ineffective assistance of counsel. An immigration judge “may 

grant a continuance for good cause shown.” 8 C.F.R. § 1003.29 

(2013). The Board will not overturn the denial of a continuance 

unless the alien was deprived of a full and fair hearing. 

Matter of Perez-Andrade, 19 I. & N. Dec. 433, 434 (BIA 1987). 

The alien must show actual prejudice or harm. Matter of Sibrun, 

18 I. & N. Dec. 354, 356-57 (BIA 1983). We review the denial of 
6

a motion for a continuance for abuse of discretion. Lendo v. 

Gonzales, 493 F.3d 439, 441 (4th Cir. 2007); Onyeme v. INS, 146 

F.3d 227, 231 (4th Cir. 1998). We “must uphold the [immigration 

judge’s] denial of a continuance ‘unless it was made without a 

rational explanation, it inexplicably departed from established 

policies, or it rested on an impermissible basis, e.g., 

invidious discrimination against a particular race or group.’” 

Lendo, 493 F.3d at 441 (quoting Onyeme, 146 F.3d at 231). We 

conclude that the immigration judge’s denial of the motion for a 

continuance was not an abuse of discretion. 

Cespedes further argues that the Board abused its 

discretion by denying his motion for reconsideration and by 

finding that he was not eligible for cancellation of removal. A 

motion to reconsider must specify the errors of law or fact in 

the Board’s prior decision. See 8 U.S.C. § 1229a(c)(6)(c) 

(2006); 8 C.F.R. § 1003.2(b) (2013). We review the denial of a 

motion for reconsideration for abuse of discretion. Narine v. 

Holder, 559 F.3d 246, 249 (4th Cir. 2009); Jean v. Gonzales, 435 

F.3d 475, 481 (4th Cir. 2006). 

Under 8 U.S.C. § 1229b(a) (2006), the Attorney General 

may cancel removal for certain permanent residents. The 

applicant must show that he has resided in the United States 

continuously for seven years after having been admitted in any 

status. The continuous period is terminated, as is relevant to 
7

these petitions, when the alien has committed an offense 

referred to in 8 U.S.C. § 1182(a)(2) (2006), that renders him 

removable under § 1227(a)(2). 8 U.S.C. § 1229b(d)(1). 

Cespedes’ conviction is such an offense. Cespedes bore the 

burden of showing that he was eligible for cancellation of 

removal. 8 U.S.C. § 1229a(c)(4) (2006). 

We conclude that Cespedes failed to show that he had 

the requisite seven years’ continuous presence to qualify for 

cancellation of removal. We further conclude that the Board did 

not abuse its discretion by denying reconsideration and denying 

Cespedes’ request for a remand. Cespedes failed to show that he 

was eligible for cancellation of removal. 

Accordingly, we deny the petitions for review. We 

dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before 

this Court and argument would not aid the decisional process.

PETITIONS DENIED