     15-4177
     Ramos-Gorrin v. Lynch
                                                                            BIA
                                                                     Connelly, IJ
                                                                    A208 078 140

                             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   10th day of January, two thousand seventeen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            ROSEMARY S. POOLER,
 9            PETER W. HALL,
10                 Circuit Judges.
11   _____________________________________
12
13   OMAR RAMOS-GORRIN,
14
15                           Petitioner,
16
17                  v.                                        15-4177
18
19   LORETTA E. LYNCH, UNITED STATES
20   ATTORNEY GENERAL,
21
22                 Respondent.
23   _____________________________________
24
25   FOR PETITIONER:                          Stephen K. Tills, Orchard
26                                            Park, New York.
27
 1   FOR RESPONDENT:                    Benjamin C. Mizer, Principal
 2                                      Deputy Assistant Attorney
 3                                      General; Terri J. Scadron,
 4                                      Assistant Director; Hillel R.
 5                                      Smith, Attorney, Office of
 6                                      Immigration Litigation,
 7                                      United States Department of
 8                                      Justice, Washington, D.C.
 9
10        UPON DUE CONSIDERATION of this petition for review of a
11   Board of Immigration Appeals (“BIA”) decision, it is hereby
12   ORDERED, ADJUDGED, AND DECREED that the petition for review is
13   DENIED.

14        Petitioner Omar Ramos-Gorrin, a citizen of Spain and Cuba,
15   seeks review of a December 14, 2015, decision of the BIA
16   affirming the August 25, 2015, decision of an Immigration Judge
17   (“IJ”) denying his motion for a continuance in asylum-only
18   proceedings. In re Omar Ramos-Gorrin, No. A208 078 140 (B.I.A.
19   Dec. 14, 2015), aff’g No. A208 078 140 (Immig. Ct. Batavia Aug.
20   25, 2015).    We assume the parties’ familiarity with the
21   underlying facts and procedural history in this case.

22        Under the circumstances of this case, we have reviewed both
23   the IJ’s and the BIA’s decisions “for the sake of completeness.”
24   Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
25   2006). We review the IJ’s denial of a request for a continuance
26   “under a highly deferential standard of abuse of discretion.”
27   Morgan v. Gonzales, 445 F.3d 549, 551 (2d Cir. 2006). The IJ
28   did not abuse its discretion in denying Ramos-Gorrin’s motion
29   to continue his asylum-only proceedings to pursue adjustment
30   of status under the Cuban Adjustment Act.

31        An IJ “may grant a motion for continuance for good cause
32   shown.” 8 C.F.R. § 1003.29. The IJ abuses his discretion only
33   if his “decision rests on an error of law (such as application
34   of the wrong legal principle)[,] . . . a clearly erroneous
35   factual finding[,] or . . . cannot be located within the range
36   of permissible decisions.” Morgan, 445 F.3d at 551-52 (quoting
37   Zervos v. Verizon New York, Inc., 252 F.3d 163, 169 (2d Cir.
38   2001)).

39        Under the Visa Waiver Program (“VWP”), “certain aliens may
40   enter the United States without a visa for up to 90 days if they
41   waive their right to contest any action for deportation (other

                                    2
1    than on the basis of an asylum application) against them.”
2    Jean-Baptiste v. Reno, 144 F.3d 212, 216-17 (2d Cir. 1998); see
3    also 8 U.S.C. § 1187. In asylum only proceedings (commenced
4    after a VWP violator seeks asylum),

 5            [t]he scope of review . . . [is] limited to a
 6            determination of whether the alien is eligible for
 7            asylum or withholding or deferral of removal, and .
 8            . . all parties are prohibited from raising or
 9            considering any other issues, including but not
10            limited to issues of admissibility, deportability,
11            eligibility for waivers, and eligibility for any other
12            form of relief.

13   8 C.F.R. § 1208.2(c)(3)(i). And, although a VWP participant
14   may adjust to lawful status, he “may not contest removal on the
15   basis of an adjustment of status application filed after that
16   participant overstays the 90-day period of authorized stay.”
17   Gjerjaj v. Holder, 691 F.3d 288, 293 (2d Cir. 2012) (addressing
18   adjustment based on immediate relative visa petition).

19        Because Ramos-Gorrin did not apply to adjust status prior
20   to expiration of his 90-day authorized stay, he was not
21   permitted to contest his removal or obtain a continuance in
22   order to do so in his asylum-only proceedings. See 8 C.F.R.
23   § 1208.2(c)(3)(i); Gjerjaj, 691 F.3d at 293.           Moreover,
24   Ramos-Gorrin admitted that he was not eligible to adjust status
25   at the time he requested a continuance. See Elbahja v. Keisler,
26   505 F.3d 125, 128-29 (2d Cir. 2007) (providing that because “the
27   petitioner was not, at the time of the hearing, ‘eligible for
28   adjustment of status, . . . he had no right to yet another delay
29   in the proceedings so that he could attempt to become eligible
30   for such relief’” (quoting Morgan, 445 F.3d at 552)).
31   Accordingly, the agency did not abuse its discretion in finding
32   no good cause to continue Ramos-Gorrin’s proceedings. See
33   Morgan, 445 F.3d at 551-52.

34        For the foregoing reasons, the petition for review is
35   DENIED.

36                                FOR THE COURT:
37                                CATHERINE O’HAGAN WOLFE, CLERK




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