    13-1591
    Cruz v. Holder
                                                                                                   BIA
                                                                                            Vomacka, IJ
                                                                                           A042 283 299
                            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 for the Second Circuit, held at the
    Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
    18th day of June, two thousand fourteen.

    Present:
                ROSEMARY S. POOLER,
                PETER W. HALL,
                SUSAN L. CARNEY,
                      Circuit Judges.
    _____________________________________

    RUBEN CRUZ,

                     Petitioner,

                     v.                                         13-1591

    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,

                Respondent.
    _____________________________________

    Appearing for Petitioner:            Jon E. Jessen, Law Offices of Jon E. Jessen, LLC,
                                         Stamford, CT.

    Appearing for Respondent:            Stefanie A. Svoren-Jay, Trial Attorney, Office of
                                         Immigration Litigation (Stuart F. Delery, Assistant
                                         Attorney General, Civil Division; Jennifer L. Lightbody,
                                         Senior Litigation Counsel, Office of Immigration
                                         Litigation, on the brief) United States Department of
                                         Justice, Washington D.C.
        UPON DUE CONSIDERATION of this petition for review of a Board of Immigration
Appeals (the “BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that
the petition for review is DENIED in part and DISMISSED in part for lack of jurisdiction.

        Petitioner Ruben Cruz, a native and citizen of Colombia, seeks review of a March 27,
2013 decision of the BIA, dismissing his appeal from the November 29, 2011 decision of
Immigration Judge Alan A. Vomacka (the “IJ”), which ordered Cruz removed. In re Ruben Cruz,
No. A042 283 299 (B.I.A. Mar. 27, 2013), aff’g in part No. A042 283 299 (Immig. Ct. N.Y. City
Nov. 29, 2011). We assume the parties’ familiarity with the underlying facts and procedural
history in this case.

        The agency held that Cruz was inadmissible due to his 2000 New York State conviction
for possession of marijuana. Cruz sought relief through a discretionary waiver under Section
212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h). We lack jurisdiction to
review the denial of a Section 212(h) waiver, see 8 U.S.C. § 1252(a)(2)(B)(i), but retain
jurisdiction to review “constitutional claims or questions of law,” id. § 1252(a)(2)(D); see also
Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 324–30 (2d Cir. 2006). Whether an alien is
statutorily eligible for discretionary relief under Section 212(h) is a question of law that we have
jurisdiction to review. Sepulveda v. Gonzales, 407 F.3d 59, 62–63 (2d Cir. 2005).

        A petitioner is ineligible for Section 212(h) relief if, after being admitted to the United
States as a lawful permanent resident, he is convicted of an aggravated felony. See 8 U.S.C.
§ 1182(h). In this case, Cruz does not challenge the IJ’s finding that he was admitted to the
United States as a lawful permanent resident in approximately 1991, and concedes that he was
convicted of an aggravated felony—Robbery in the Second Degree—in 1995. Thus, the agency
did not err in concluding that Cruz was ineligible for Section 212(h) relief.

        Cruz also challenges the IJ’s denial of his motion for a continuance. That is a
discretionary decision, Sanusi v. Gonzales, 445 F.3d 193, 199 (2d Cir. 2006), over which our
review is limited to constitutional claims and questions of law, see 8 U.S.C. § 1252(a)(2)(D).

        Cruz sought a continuance before the IJ so that he could attempt to obtain a pardon from
the Governor of Connecticut. The IJ denied the continuance in large part because Cruz had been
in removal proceedings for more than four years and could move to reopen his immigration
proceedings if he obtained a pardon. Cruz’s challenge to the IJ’s discretionary denial of his
request for a continuance does not present a colorable constitutional claim or question of law
and, therefore, we lack jurisdiction over this aspect of Cruz’s petition for review. See Saloum v.
U.S. Citizenship & Imm. Servs., 437 F.3d 238, 243–44 (2d Cir. 2006).

        With respect to the denial of the continuance, Cruz also contends that the BIA erred in
stating that “even if [his] conviction for robbery was pardoned, a pardon would not overcome the
immigration consequences of his conviction which are at issue in this case.” Even supposing that
individual statement by the BIA could constitute legal error, the BIA went on to state that even if
a pardon could affect the outcome here, a continuance would not have been warranted because

                                                 2
there was no persuasive evidence that Cruz would in fact be granted a pardon. As with his
challenge to the IJ’s denial of a continuance, Cruz’s assertion regarding the BIA’s affirmance of
the IJ’s denial of his motion to continue is outside the scope of our jurisdiction because he does
not present a colorable constitutional claim or question of law.

        We have considered the remainder of Cruz’s arguments and find them to be without
merit. Accordingly, Cruz’s petition for review is DENIED in part and DISMISSED in part for
lack of jurisdiction.

                                             FOR THE COURT:
                                             Catherine O’Hagan Wolfe, Clerk




                                                3
