         11-4855-ag
         Kedra v. Holder
                                                                                         BIA
                                                                                  Verrillo, IJ
                                                                               A089 032 359
                                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
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 10th day of October, two thousand twelve.
 5
 6       PRESENT:
 7                         JON O. NEWMAN,
 8                         GERARD E. LYNCH,
 9                         RAYMOND J. LOHIER, JR.,
10                              Circuit Judges.
11       _____________________________________
12
13       Artur Jan Kedra,
14                 Petitioner,
15
16                         v.                                   11-4855-ag
17
18       Eric H. Holder, Jr., United States
19       Attorney General,
20                 Respondent.
21       _____________________________________
22
23       FOR PETITIONER:                 Artur Jan Kedra, pro se, New
24                                       Britain, CT.
25
26       FOR RESPONDENT:                 Stuart F. Delery, Acting Assistant
27                                       Attorney General, William C.
28                                       Peachey, Assistant Director, Andrew
29                                       B. Insenga, Trial Attorney, Office
30                                       of Immigration Litigation, Civil
31                                       Division, United States Department
32                                       of Justice, Washington, D.C.
 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

 4   is DENIED.

 5       Artur Jan Kedra,1 a native and citizen of Poland, seeks

 6   review of an October 25, 2011 decision of the BIA affirming

 7   the December 17, 2009 decision of Immigration Judge (“IJ”)

 8   Philip Verrillo, which denied his request for a continuance

 9   and ordered him removed.   In re Artur Jan Kedra, No. A089

10   032 359 (B.I.A. Oct. 25, 2011), aff’g No. A089 032 359

11   (Immig. Ct. Hartford Dec. 17, 2009).   We assume the parties’

12   familiarity with the underlying facts and procedural history

13   in this case.

14       Where, as here, the BIA affirms an IJ’s decision

15   without opinion,2 we review only the IJ’s decision as the


         1
           Petitioner’s surname is alternately spelled “Kedra”
     and “Kendra” throughout the administrative record. We use
     “Kedra” in this Order, as this is the spelling Petitioner
     used when he filed the instant Petition.
         2
           The BIA did not err or abuse its discretion by
     granting summary affirmance. See Kambolli v. Gonzales, 449
     F.3d 454, 463 (2d Cir. 2006) (providing that this Court
     lacks authority to review the BIA’s decision to streamline a
     particular case); Xusheng Shi v. BIA, 374 F.3d 64, 66 (2d
     Cir. 2004) (holding that the BIA’s use of summary affirmance
     does not constitute an abuse of discretion); Yu Sheng Zhang
     v. U.S. Dep’t of Justice, 362 F.3d 155, 160 (2d Cir. 2004)
     (holding that summary affirmance does not deprive an alien
     of due process).
                                   2
 1   final agency determination.     See Shunfu Li v. Mukasey, 529

 2   F.3d 141, 146 (2d Cir. 2008).       This Court reviews the denial

 3   of a continuance for abuse of discretion.       See Sanusi v.

 4   Gonzales, 445 F.3d 193, 199 (2d Cir. 2006).       An IJ abuses

 5   his discretion in denying a continuance if: “(1) [his]

 6   decision rests on an error of law (such as application of

 7   the wrong legal principle) or a clearly erroneous factual

 8   finding[;] or (2) [his] decision – though not necessarily

 9   the product of a legal error or a clearly erroneous factual

10   finding – cannot be located within the range of permissible

11   decisions.”     Morgan v. Gonzales, 445 F.3d 549, 551-52 (2d

12   Cir. 2006) (first and third alterations in original)

13   (internal quotation marks omitted).

14       An IJ may grant a motion for continuance “for good

15   cause shown.”     8 C.F.R. § 1003.29.    Continuances are not

16   ordinarily granted based solely on a pending labor

17   certification in the absence of additional persuasive

18   factors.   See Matter of Rajah, 25 I. & N. Dec. 127, 136-37

19   (B.I.A. 2009) (collecting cases); see also Elbahja v.

20   Keisler, 505 F.3d 125, 129 (2d Cir. 2007) (holding that,

21   where petitioner’s eligibility for adjustment of status was

22   “speculative,” it was not an abuse of discretion for IJ to


                                     3
 1   deny petitioner’s request for a continuance “in order to

 2   permit adjudication of [petitioner’s] pending labor

 3   certification”).

 4       Here, the IJ did not abuse his discretion by denying a

 5   continuance, as Kedra was not eligible for adjustment of

 6   status.   See 8 U.S.C. § 1255(c)(8) (stating that “any alien

 7   [present in the United States] . . . who has otherwise

 8   violated the terms of a nonimmigrant visa” is ineligible for

 9   adjustment of status); Elbahja, 505 F.3d at 129.3

10       For the foregoing reasons, the petition for review is

11   DISMISSED.

12                               FOR THE COURT:
13                               Catherine O’Hagan Wolfe, Clerk
14
15




         3
           Kedra’s reliance on Thapa v. Gonzales, 460 F.3d 323
     (2d Cir. 2006), is unavailing. In Thapa, the petitioner
     would have been eligible to remain in the United States if
     his request for labor certification had been granted, id. at
     335, whereas Kedra conceded that he would be ineligible for
     adjustment of status whether or not his pending employment-
     based petition was granted.
                                   4
