     16-3986
     Cruz Pomavilla v. Sessions
                                                                                    BIA
                                                                          Christensen, IJ
                                                                          A094 226 639
                             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 Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 11th day of June, two thousand eighteen.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            GUIDO CALABRESI,
 9            JOSÉ A. CABRANES,
10                 Circuit Judges.
11   _____________________________________
12
13   JOSE ROLANDO CRUZ POMAVILLA,
14   AKA JOSE CRUZ, AKA JOSE O CRUZ,
15   AKA JUSTIN CRUZ, AKA JOSE
16   ROLANDO CRUZ, AKA JOSE ROLANDO
17   POMAVILLA,
18                 Petitioner,
19
20                     v.                                        16-3986
21                                                               NAC
22   JEFFERSON B. SESSIONS III,
23   UNITED STATES ATTORNEY GENERAL,
24                 Respondent.
25   _____________________________________
26
27   FOR PETITIONER:                    Garth A. Molander, Bohemia, NY.
28
29
1    FOR RESPONDENT:                Chad A. Readler, Acting Assistant
2                                   Attorney General; Linda S.
3                                   Wernery, Assistant Director;
4                                   Brendan T. Moore, Trial Attorney,
5                                   Office of Immigration Litigation,
6                                   United States Department of
7                                   Justice, Washington, DC.
8
9        UPON DUE CONSIDERATION of this petition for review of a

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

11   ORDERED, ADJUDGED, AND DECREED that the petition for review

12   is DENIED.

13       Petitioner Jose Rolando Cruz Pomavilla, a native and

14   citizen of Ecuador, seeks review of an October 31, 2016,

15   decision of the BIA affirming a March 15, 2016, decision of

16   Immigration   Judge   (“IJ”)    Jesse   Christensen   denying   Cruz

17   Pomavilla’s motion for a continuance.         In re Jose Rolando

18   Cruz Pomavilla, No. A 094 226 639 (B.I.A. Oct. 31, 2016),

19   aff’g No. A 094 226 639 (Immig. Ct. N.Y. City Mar. 15, 2016).

20   We assume the parties’ familiarity with the underlying facts

21   and procedural history in this case.

22       Under the circumstances of this case, we have reviewed

23   both the IJ’s and the BIA’s decisions “for the sake of

24   completeness.”    Wangchuck v. Dep’t of Homeland Sec., 448 F.3d

25   524, 528 (2d Cir. 2006).       We review the agency’s denial of a
                                        2
1    continuance for abuse of discretion.                  Morgan v. Gonzales, 445

2    F.3d 549, 551 (2d Cir. 2006).                 An IJ “may grant a motion for

3    continuance for good cause shown,” 8 C.F.R. § 1003.29, and we

4    accord IJs “wide latitude in calendar management,” Morgan,

5    445 F.3d at 551.             An IJ abuses his discretion only if

6    “(1) [his]    decision       rests     on      an    error    of   law   (such   as

7    application     of    the    wrong     legal        principle)     or    a   clearly

8    erroneous factual finding or (2) [his] decision—though not

9    necessarily     the    product       of   a    legal    error      or    a   clearly

10   erroneous factual finding—cannot be located within the range

11   of permissible decisions.”                Id. at 551-52 (alterations in

12   original).      IJs “must grant a reasonable and realistic period

13   of time to provide a fair opportunity for a respondent to

14   seek, speak with, and retain counsel.”                       Matter of C-B-, 25

15   I. & N. Dec. 888, 889 (B.I.A. 2012).

16       Cruz Pomavilla has shown no abuse of discretion.                           Cruz

17   Pomavilla received a continuance of nearly three months in

18   September 2015 to retain an attorney, and another three-month

19   continuance in December 2015, to apply for asylum and to

20   continue   to    seek       counsel.          While    he    requested       another

21   continuance, he failed to show good cause because he offered
                                               3
1    no evidence to support his allegation that his employer had

2    retained an attorney for him.           Indeed, the IJ contacted the

3    attorney in question, who stated that he did not represent

4    Cruz Pomavilla.      The IJ denied Cruz Pomavilla’s request for

5    a   further     continuance     after   considering    the    number    of

6    continuances Cruz Pomavilla had already received and the fact

7    that, despite being warned that he would not be granted

8    additional continuances, he still failed to retain counsel

9    during the two last adjournments.           Accordingly, the IJ did

10   not abuse his discretion by denying a further continuance.

11        Cruz     Pomavilla’s     additional   arguments    fail.     First,

12   contrary to Cruz Pomavilla’s contentions, a 2013 internal BIA

13   memorandum does not require IJs to give two continuances;

14   rather, it states a general policy that, “absent good cause

15   shown, no more than two continuances should be granted . . .

16   for the purpose of obtaining legal representation.”                    See

17   Memorandum from Brian M. O’Leary, Chief Immigration Judge,

18   Office of the Chief Immigration Judge, to all Immigration

19   Judges   and    Administrators,     OPPM   13-01,     Continuances     and

20   Administrative Closure (Mar. 7, 2013) at 2.            Regardless, Cruz

21   Pomavilla      received   two   continuances   here.         Second,   the
                                         4
1    factors laid out in Matter of Hashmi, 24 I. & N. Dec. 785

2    (B.I.A. 2009), do not apply because there was no pending

3    application with any other agency.       Third, the denial of a

4    continuance did not deprive Cruz Pomavilla of due process

5    because he had multiple opportunities to obtain counsel, file

6    applications, and present evidence.      See Burger v. Gonzales,

7    498 F.3d 131, 134 (2d Cir. 2007) (holding that due process in

8    immigration    proceedings   is   satisfied   by   notice   and   an

9    opportunity to be heard).

10       For the foregoing reasons, the petition for review is

11   DENIED.    As we have completed our review, any stay of removal

12   that the Court previously granted in this petition is VACATED,

13   and any pending motion for a stay of removal in this petition

14   is DISMISSED as moot.    Any pending request for oral argument

15   in this petition is DENIED in accordance with Federal Rule of

16   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

17   34.1(b).

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




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