     15-1322
     Arana-Mejia v. Sessions
                                                                                       BIA
                                                                                Montante, IJ
                                                                               A089 002 636
                               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   23rd day of February, two thousand seventeen.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            BARRINGTON D. PARKER,
 9            RICHARD C. WESLEY,
10                 Circuit Judges.
11   _____________________________________
12
13   JAVIER AUGUSTO ARANA-MEJIA, AKA
14   LUIS ELRIQUE GONZALE BACENET,
15            Petitioner,
16
17                     v.                                            15-1322
18                                                                   NAC
19   JEFF SESSIONS, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.*
22   _____________________________________
23
24   FOR PETITIONER:                      Jose Perez, Syracuse, N.Y.
25
26   FOR RESPONDENT:                      Benjamin C. Mizer, Principal Deputy
27                                        Assistant Attorney General; John W.
28                                        Blakeley,    Assistant    Director;

     * Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
     General Jeff Sessions is automatically substituted for former
     Attorney General Loretta E. Lynch as respondent.
1                               Enitan O. Otunla, Trial Attorney,
2                               Office of Immigration Litigation,
3                               United States Department of Justice,
4                               Washington, D.C.
5
6        UPON DUE CONSIDERATION of this petition for review of a

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

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

9    DENIED.

10       Petitioner   Javier   Augusto   Arana-Mejia,   a   native   and

11   citizen of Guatemala, seeks review of a March 24, 2015, decision

12   of the BIA affirming a November 4, 2013, decision of an

13   Immigration Judge (“IJ”) denying Arana-Mejia’s motion for a

14   continuance and application for voluntary departure.        In re

15   Javier Augusto Arana-Mejia, No. A089 002 636 (B.I.A. Mar. 24,

16   2015), aff’g No. A089 002 636 (Immig. Ct. Buffalo Nov. 4, 2013).

17   We assume the parties’ familiarity with the underlying facts

18   and procedural history in this case.

19       Under the circumstances of this case, we have reviewed both

20   the IJ’s and BIA’s decisions.   Zaman v. Mukasey, 514 F.3d 233,

21   237 (2d Cir. 2008).   We note at the outset that Arana-Mejia

22   challenges only the agency’s denial of his motion for a




                                     2
1    continuance; he does not contest the denial of voluntary

2    departure.

3        We review the agency’s denial of a continuance “under a

4    highly deferential standard of abuse of discretion.”       Morgan

5    v. Gonzales, 445 F.3d 549, 551 (2d Cir. 2006).   That is because

6    “IJs are accorded wide latitude in calendar management, and we

7    will not micromanage their scheduling decisions any more than

8    we review such decisions by district judges.”     Id.

9        An IJ “may grant a motion for continuance for good cause

10   shown.”   8 C.F.R. § 1003.29.   Although the regulations do not

11   define “good cause,” the agency requires that a movant seeking

12   a   “continuance    based    upon    an   asserted      lack   of

13   preparation . . . make a reasonable showing that the lack of

14   preparation occurred despite a diligent good faith effort to

15   be ready to proceed . . . [and] establish[] that th[e] denial

16   caused him actual prejudice and harm and materially impacted

17   the outcome of his case.”   In re Sibrun, 18 I. & N. Dec. 354,

18   356-57 (B.I.A. 1983).

19       The agency did not abuse its discretion in denying a

20   continuance because Arana-Mejia did not make “a reasonable

21   showing that the lack of preparation occurred despite a diligent
                                     3
1    good faith effort to be ready to proceed.”       In re Sibrun, 18

2    I. & N. at 356.       Arana-Mejia argues in this Court that he

3    telephoned many attorneys, but was not able to retain one.         He

4    did not make this claim before the agency; instead, he offered

5    no account of his attempts to secure counsel in the two months

6    since firing his prior attorney or any plausible explanation

7    for why the attorney he had supposedly retained to replace her

8    was not present.       The agency also correctly observed that

9    Arana-Mejia’s case had been pending for over two-and-a-half

10   years and that he had been given a list of free legal services

11   providers before he was even placed in removal proceedings.

12   Under     such   circumstances,   Arana-Mejia   did   not   make     a

13   “reasonable showing that the lack of preparation occurred

14   despite a diligent good faith effort.”      In re Sibrun, 18 I. &

15   N. at 356.

16       Even assuming that Arana-Mejia had established diligence,

17   he is unable to show that the “denial [of a continuance] caused

18   him actual prejudice[.]”      In re Sibrun, 18 I. & N. Dec. at

19   356-57.    He asserts that the record clearly demonstrates he may

20   have a legitimate claim for asylum and related relief and that

21   he was therefore prejudiced by the continuance denial.             But
                                       4
1    despite being counseled both on appeal to the BIA and in this

2    Court, Arana-Mejia has neither submitted an I-589 asylum

3    application nor articulated a claim.              Accordingly, he has

4    failed to demonstrate actual prejudice with respect to any

5    potential claim for asylum and related relief.            Cf. Rabiu v.

6    INS, 41 F.3d 879, 882 (2d Cir. 1994) (A petitioner seeking to

7    establish actual prejudice from his attorney’s failure to apply

8    for relief from removal “must make a prima facie showing that

9    he would have been eligible for the relief.”).

10       Arana-Mejia   also   asserts      that   he    is   entitled   to   a

11   continuance on the grounds that his due process rights were

12   violated when the IJ admitted into evidence his Form I-213

13   Record of Deportable/Inadmissible Alien without affording him

14   sufficient time to examine it.       “Parties claiming denial of due

15   process in immigration cases must, in order to prevail, ‘allege

16   some cognizable prejudice fairly attributable to the challenged

17   process.’”   Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d

18   Cir.2008) (citation omitted).        Again, Arana-Mejia cannot show

19   prejudice: the Form I-213 was admitted as evidence of his

20   criminal history and his false claim of U.S. citizenship, and

21   Arana-Mejia’s   testimony   independently          established     both.
                                      5
1    Those findings, moreover, were made in support of the agency’s

2    denial of voluntary departure, which Arana-Mejia does not

3    contest on appeal.

4        For the foregoing reasons, the petition for review is

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

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

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

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

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

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

11   34.1(b).

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




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