     17-133
     Lora v. Sessions
                                                                                       BIA
                                                                                Buchanan, IJ
                                                                               A041 598 311
                             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 TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1        At a stated term of the United States Court of Appeals for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   28th day of November, two thousand seventeen.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            ROBERT D. SACK,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   DANILDA LORA, AKA DANILDA OSORIA,
14   AKA DANILDA LORA OSORIA, AKA
15   DANILDA L. OSORIA,
16            Petitioner,
17
18                      v.                                           17-133
19                                                                   NAC
20   JEFFERSON B. SESSIONS III,
21   UNITED STATES ATTORNEY GENERAL,
22            Respondent.
23   _____________________________________
24
25   FOR PETITIONER:                Craig Relles, White Plains, NY.
26
27   FOR RESPONDENT:                Chad A. Readler, Acting Assistant
28                                       Attorney General; Shelley R. Goad,
29                                       Assistant Director; Laura Halliday
30                                       Hickein, Trial Attorney, Office of
31                                       Immigration Litigation, United
32                                       States Department of Justice,
33                                       Washington, DC.
1         UPON DUE CONSIDERATION of this petition for review of a

2    Board of Immigration Appeals (“BIA”) decision, it is hereby

3    ORDERED, ADJUDGED, AND DECREED that the petition for review is

4    DENIED.

5         Petitioner Danilda Lora, a native and citizen of the

 6   Dominican Republic, seeks review of a December 20, 2016 decision

 7   of the BIA affirming a July 20, 2016 decision of an Immigration

 8   Judge (“IJ”) denying Lora’s application for relief under the

9    Convention Against Torture (“CAT”). In re Danilda Lora, No. A

10   041 598 311 (B.I.A. Dec. 20, 2016), aff’g No. A 041 598 311 (Immig.

11   Ct. N.Y.C. July 20, 2016). We assume the parties’ familiarity

12   with the underlying facts and procedural history in this case.

13        We have reviewed the IJ’s decision as modified by the BIA,

14   and, as did the BIA, we assume Lora’s credibility,

15   notwithstanding the IJ’s mixed findings in that regard. See Xue

16   Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.

17   2005); Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).

18   Lora’s conviction in 2014 for drug-related offenses limits our

19   review to constitutional claims and questions of law, as to

20   which we review the BIA’s rulings de novo. 8 U.S.C.

21   § 1252(a)(2)(C), (D); Ortiz-Franco v. Holder, 782 F.3d 81, 90

22   (2d Cir. 2015). Lora presents two such claims here: that the


                                     2
1    agency’s denial of her requests for a continuance and subpoena

2    violated her constitutional right to due process, and that her

3    removal effects a constitutionally disproportionate punishment

4    for her conviction. As discussed below, the claims lack merit.

5    I.   Continuance and Subpoena

6         Aliens are entitled to receive due process in removal

7    proceedings. Reno v. Flores, 507 U.S. 292, 306 (1993). To state

8    a due process claim, Lora must show (1) that she was denied a

9    “full and fair opportunity” to present her claims or that she

10   was otherwise deprived of “fundamental fairness,” Burger v.

11   Gonzales, 498 F.3d 131, 134 (2d Cir. 2007) (internal quotation

12   marks omitted), and (2) resulting “cognizable prejudice,”

13   Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d Cir. 2008)

14   (internal quotation marks omitted). Lora’s due process

15   challenges fail both prongs of this test.

16        An IJ’s continuance ruling does not ordinarily implicate

17   a constitutional claim or question of law, because “IJs are

18   accorded wide latitude in calendar management,” and such

19   decisions are reviewed “under a highly deferential standard of

20   abuse of discretion.” Morgan v. Gonzales, 445 F.3d 549, 551 (2d

21   Cir. 2006).

22        Further, although an IJ may grant a continuance where a


                                     3
1    petitioner shows good cause for the request, 8 C.F.R. § 1003.29,

2    the IJ considers the Government’s position and the merits of

3    the underlying claim for relief, as well as “the reason for the

4    continuance and other procedural factors,” Matter of Hashmi,

5    24 I. & N. Dec. 785, 790 (B.I.A. 2009), in making a decision.

6        Here, Lora did not show she was denied fundamental fairness

7    in the denial of her request for a continuance. The agency

8    applied the correct standard in reaching its decision. The IJ

9    considered the Government’s opposition to a continuance, and

10   it identified procedural and substantive concerns related to

11   the requests, including the timing of the requests, Lora’s

12   failure to comply with the Immigration Court Practice Manual

13   in making the request, and her failure to proffer detailed

14   information about the testimony that her proposed witness,

15   Mario Osorio, would give were a continuance granted. Lora

16   received a sufficiently full and fair opportunity to make her

17   case for the continuance.

18       Lora argues that Osorio’s testimony would have been crucial

19   to her case. But although Osorio may have been expected to be

20   a key witness, Lora did not establish that his testimony would

21   have provided anything more than speculation about any threats

22   against her. Because Lora bore the burden of showing that


                                    4
1    torture was more likely than not, her allegations about Osorio’s

2    testimony are too vague to demonstrate the cognizable prejudice

3    required to make out a due process violation. See 8 C.F.R.

4    § 1208.16(c)(2); Jian Xing Huang v. U.S. INS, 421 F.3d 125, 129

5    (2d Cir. 2005) (“In the absence of solid support in the record

6    . . . , [an applicant’s] fear is speculative at best.”).

7        Lora’s challenge to the denial of a subpoena fails for

8    essentially the same reason. Lora argues that the IJ was

9    required by regulation to subpoena the Bureau of Prisons and

10   require the Bureau to make Osorio available to testify. The IJ

11   is required to grant a subpoena, however, only if the testimony

12   is “essential.” 8 C.F.R. § 1003.35(b)(3). As discussed above,

13   Lora did not show that Osorio’s testimony was essential because

14   she provided neither an affidavit from Osorio nor detailed

15   information regarding the threats as to which he would testify.

16   Even assuming the IJ could have issued a subpoena to a federal

17   agency, therefore, Lora has not demonstrated that the IJ’s

18   decision was fundamentally unfair or that she suffered

19   cognizable prejudice.

20 II.   Proportionality

21       Lora also argues that her removal violates due process

22   because it imposes a disproportionate punishment for her


                                    5
1    criminal conviction. This argument is foreclosed by our recent

2    decision in Marin-Marin v. Sessions, 852 F.3d 192, 194 (2d Cir.

3    2017), in which we held that removal is not subject to due

4    process proportionality review. Although Marin-Marin dealt

5    with the removal of an alien whose presence in the United States

6    was unauthorized, its reasoning also controls here. See id.

7    (“[I]n general, when removal is predicated on a criminal act,

8    ‘the alien is not being punished for that act (criminal charges

9    may be available for that separate purpose) but is merely being

10   held to the terms under which [s]he was admitted.’” (quoting

11   Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 491

12   (1999)) (brackets added)).

13       For the foregoing reasons, the petition for review is

14   DENIED. As we have completed our review, Lora’s motion for a

15   stay of removal is DISMISSED as moot. Any pending request for

16   oral argument in this petition is DENIED in accordance with

17   Federal Rule of Appellate Procedure 34(a)(2), and Second

18   Circuit Local Rule 34.1(b).

19                                 FOR THE COURT:
20                                 Catherine O’Hagan Wolfe, Clerk




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