10-2428-ag Campos Tito v. Holder BIA Straus, IJ A076 520 796 

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

## SUMMARY ORDER

**RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER**  **FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER**  **IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX 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 6 th** **day of July, two thousand eleven.** 4 5 **PRESENT:** 6 **PETER W. HALL,** 7 **GERARD E. LYNCH,** 8 **DENNY CHIN,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **MIGUEL ANTONIO CAMPOS TITO,** 13 Petitioner**,** 14 15 **v. 10-2428-ag** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent**.** 20

**_______________________________________** 21 22 **FOR PETITIONER: Elyssa N. Williams, Formica, P.C.,** 23 **New Haven, Connecticut.** 24 25 **FOR RESPONDENT: Tony West, Assistant Attorney** 26 **General; Melissa Neiman-Kelting,** 27 **Senior Litigation Counsel; Stefanie** 28 **Notarino Hennes, Trial Attorney,** 292 **Office of Immigration Litigation,** 1 **United States Department of Justice,** 2 **Washington, D.C.** 3 4 UPON DUE CONSIDERATION of this petition for review of a 5 Board of Immigration Appeals (“BIA”) decision, it is hereby 6 ORDERED, ADJUDGED, AND DECREED, that the petition for review 7 is DENIED. 8 Miguel Antonio Campos Tito, a native and citizen of 9 Peru, seeks review of a May 20, 2010, order of the BIA, 10 affirming the June 6, 2008, decision of Immigration Judge 11 (“IJ”) Michael W. Straus, denying his motion for a 12 continuance to allow him to pursue adjustment of status and 13 ordering him removed. In re Campos Tito , No. A076 520 796 14 (B.I.A. May 20, 2010), aff’gNo. A076 520 796 (Immig. Ct. 15 Hartford June 6, 2008). We assume the parties’ familiarity 16 with the underlying facts and procedural history in this 17

case. 18 Under the circumstances of this case, we review only 19 the decision of the BIA. See Yan Chen v. Gonzales , 417 F.3d 20 268, 271 (2d Cir. 2005). We review the BIA’s affirmance of 21 an IJ’s decision to deny a motion for a continuance for 22 abuse of discretion. See Sanusi v. Gonzales,445 F.3d 193, 23 199 (2d Cir. 2006). 24

253 The regulations provide that an IJ “may grant a motion 1 for continuance for good cause shown.” 8 C.F.R. § 1003.29. 2 Here, Campos Tito sought a continuance before the IJ to 3 pursue his application for adjustment of status. The agency 4 found that a continuance was not warranted because Campos 5 Tito did not have an offer of employment that would support 6 adjustment of status, as his former employer was no longer 7 willing to employ him under the terms of the labor 8 certification. The agency did not err in according 9 significant weight to the fact that Campos Tito did not 10 present a viable employment offer in denying his motion, as 11 it has explained that “the focus of the inquiry is the 12 likelihood of success on the adjustment application.” 13 Matter of Rajah, 25 I. & N

. Dec. 127, 136 (B.I.A. 2009). 14 Campos Tito argues that the BIA’s standards in Matter 15 of Rajahare not applicable to his case because, unlike the 16 alien in that case, he has an approved I-140 Petition. 17 However, because Campos Tito’s approved I-140 Petition would 18 not render him eligible to adjust status as he no longer had 19 an offer of employment, his situation is sufficiently 20 analogous to Matter of Rajah, 25 I. & N. Dec. at 135-36, 21 that the Board’s reliance on that decision was not error. 224 Campos Tito further argues that his case warrants a 1 favorable exercise of discretion because his employer 2 withdrew the offer of employment without warning on the eve 3 of his hearing. However, there is no indication that the 4 BIA overlooked the positive equities in his case, and the 5 presence of such equities does not require the conclusion 6 that the BIA abused its discretion in upholding the IJ’s 7 denial of a continuance. See id. ; see also Xiao Ji Chen v. 8 U.S. Dep’t of Justice , 471 F.3d 315, 336 n.17 (the Court 9 will presume that the agency has taken account of all the 10 evidence before it “unless the record compellingly suggests 11 otherwise”). 12 Campos Tito further argues that remand is required 13 because the IJ erred in finding that he would not have 14 jurisdiction to determine whether a new employer would 15 qualify as a substitute under 8 U.S.C. § 1154(j). Cf

. 16 Freire v. Holder, __ F.3d ___, 2011 WL 2090820, at *3 (2d 17 Cir. May 27, 2011) (holding that BIA has authority to grant 18 continuance even where it lacks jurisdiction to adjust 19 alien’s status). This issue is irrelevant, however, because 20 the BIA recognized that the IJ’s statement with respect to 21 his jurisdiction was incorrect under its intervening 225 decision in Matter of Marcal Neto , 25 I. & N. Dec. 169, 173 1 (B.I.A. 2010), but still agreed with the IJ’s decision not 2 to grant a continuance for other reasons. See Yan Chen, 417 3 F.3d at 271 (we review only the decision of the BIA when it 4 disagrees with the IJ). 5 Finally, Campos Tito argues that the BIA should have 6 remanded his case to the IJ for further factual findings, 7 rather than “assuming” that he had no substitute employer. 8 However, Campos Tito did not assert before the BIA, and 9 likewise does not assert before this Court, that he has a 10 new qualifying offer of employment. Accordingly, the BIA 11 did not err in noting that Campos Tito had not shown that he 12 has a qualifying offer of employment, and in upholding the 13 IJ’s denial of a continuance. See Matter of Rajah , 25 I. & 14 N. Dec. at 136. 15 For the foregoing reasons, the petition for review is 16 DENIED. As we have completed our review, any stay of 17 removal that the Court previously granted in this petition 18 is VACATED, and any pending motion for a stay of removal in 19 this petition is DISMISSED as moot. 20
FOR THE COURT: 21 Catherine O’Hagan Wolfe, Clerk 22 23 24