                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                       October 30, 2014

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
SEMISI TOOFOHE TAUFU’I,

             Petitioner,

v.                                                          No. 14-9527
                                                        (Petition for Review)
ERIC H. HOLDER, JR., United States
Attorney General,

             Respondent.


                            ORDER AND JUDGMENT*


Before KELLY, ANDERSON, and TYMKOVICH, Circuit Judges.


      Semisi Toofohe Taufu’i is a native and citizen of Tonga who was originally

admitted to the United States on a B-2 visitor visa. On December 8, 2006, after he

married a United States citizen, his status was adjusted to that of conditional resident.

His marriage ended in divorce on July 14, 2008. Effective December 8, 2008, the

Department of Homeland Security (DHS) terminated his conditional residence status


*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
because he had failed to adjust his status to permanent residency within two years, as

required.

      On February 4, 2011, Mr. Taufu’i was convicted in Utah state court of

attempted possession with intent to distribute methamphetamine, a felony. The DHS

issued him a Notice to Appear, charging him with being subject to removal because

his conditional resident status had terminated and because he had been convicted of

an aggravated felony. He admitted to the factual allegations and charges contained in

the Notice to Appear.

      During the ensuing removal proceedings, Mr. Taufu’i filed a “Petition to

Remove Conditions on Residence” (form I-751), seeking to adjust his status to that of

a permanent resident. He requested a hardship waiver under 8 U.S.C. § 1186a(c)(4)

of the requirement that his petition be filed with his spouse, stating he “entered the

marriage in good faith, but the marriage was terminated through divorce or

annulment.” Admin. R. at 83. He asked the immigration judge (IJ) to continue the

proceedings to provide time for the United States Citizenship and Immigration

Services to adjudicate his form I-751.1 The IJ found no good cause for granting his

request, denied the continuance, and ordered him removed to Tonga.

      Mr. Taufu’i appealed to the Board of Immigration Appeals (BIA). He argued

that the IJ should have granted him a continuance for adjudication of his I-751, even
1
      The IJ determined that he also sought the continuance to give him time to seek
post-conviction relief from his felony conviction in state court, a position Mr. Taufu’i
adamantly denied before the BIA. See Admin. R. at 14.


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though he did not file the I-751 until after his conditional residency had terminated.

The BIA upheld the IJ’s decision, reasoning that “due to his convictions,

[Mr. Taufu’i] did not demonstrate eligibility for adjustment of status,” and thus “has

not demonstrated good cause for a continuance.” Id. at 3. Mr. Taufu’i then filed this

petition for review, asserting that the IJ and the BIA erred in denying him a

continuance.

      At the outset, we must determine whether we have jurisdiction over the

petition for review. Mr. Taufu’i admitted that he was subject to removal because he

had committed an aggravated felony. Section 242(a)(2)(C) of the Immigration and

Naturalization Act (INA) provides that “no court shall have jurisdiction to review any

final order of removal against an alien who is removable by reason of having

committed” an aggravated felony. 8 U.S.C. § 1252(a)(2)(C). An exception is made

to the extent that the alien’s petition raises “constitutional claims or questions of

law.” Id. § 1252(a)(2)(D).

      Mr. Taufu’i argues that “[t]he Immigration Judge and the BIA erred as a

matter of law and abused [their] discretion when denying [his] motion for a

continuance.” Pet’r’s Opening Br. at 12. To the extent he challenges the denial of a

continuance as an abuse of discretion, we plainly lack jurisdiction to review his

argument. See Waugh v. Holder, 642 F.3d 1279, 1285 (10th Cir. 2011) (stating that

aggravated felon alien’s “objection . . . to the way the IJ and BIA exercised their




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discretion” in denying continuance “raises neither a constitutional nor a legal issue,

so we are without jurisdiction to review it.”).

      Nor has Mr. Taufu’i raised a constitutional issue that falls within the exception

provided in § 1252(a)(2)(D). To obtain review of the BIA’s denial of relief, he must

present a “substantial constitutional issue” for our review. Alvarez–Delmuro v.

Ashcroft, 360 F.3d 1254, 1256 (10th Cir. 2004) (internal quotation marks omitted).

Although he contends in conclusory fashion that he was denied “a full and fair

hearing due to the denial of a continuance,” Pet’r’s Opening Br. at 13, and suggests

that the failure to grant a continuance robbed him of “one of the elements deemed

essential to due process,” id. at 17 (internal quotation marks omitted), these

assertions fail to present a substantial constitutional issue, see Waugh, 642 F.3d at

1284 (rejecting petitioner’s attempt to “frame [his] argument” for a continuance “as a

denial of due process.”).

      Finally, Mr. Taufu’i has not raised a question of law for our review. The

phrase “questions of law” in § 1252(a)(2)(D) does not refer to all legal issues, but

only to “a narrow category of issues regarding statutory construction.” Diallo v.

Gonzales, 447 F.3d 1274, 1282 (10th Cir. 2006) (internal quotation marks omitted).

Mr. Taufu’i argues that the IJ and the BIA failed to follow the BIA’s own precedent

in In re Stowers, 22 I. & N. Dec. 605 (BIA 1999), which holds that “where an alien is

prima facie eligible for a [hardship] waiver under section 216(c)(4) of the

[Immigration and Nationality] Act [8 U.S.C. § 1186a(c)(4)] and wishes to have his or


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her waiver application adjudicated by the Service, the proceedings should be

continued in order to allow the Service to adjudicate the waiver application.” Id. at

613-14. He further argues that the BIA erred under Stowers by requiring him to

demonstrate prima facie eligibility for adjustment of status rather than prima facie

eligibility for a 216(c)(4) waiver. These assertions raise questions concerning

interpretation and application of the BIA’s precedent, not issues regarding statutory

construction. They therefore do not fall within the exception for “questions of law”

in § 1252(a)(2)(D). See Waugh, 642 F.3d at 1284-85 (rejecting claim that BIA

ignored its own precedents in denying a continuance because alien’s argument in fact

asserted that the IJ and BIA “should have found the circumstances warranted a

continuation,” a claim that raised neither a constitutional nor a legal issue).

      The petition for review is dismissed for lack of jurisdiction.


                                                Entered for the Court


                                                Paul J. Kelly, Jr.
                                                Circuit Judge




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