14-4291-ag
Vazquez v. Lynch
                        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.

      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 2nd day of December, two thousand fifteen.

PRESENT:
           AMALYA L. KEARSE,
           REENA RAGGI,
           RICHARD C. WESLEY,
                 Circuit Judges.
_____________________________________

FRANKLIN VAZQUEZ, AKA Franklin Emilio
Vazquez, AKA Franklin E. Vazquez,
                 Petitioner,

                   v.
                                                                      14-4291-ag
LORETTA E. LYNCH, United States
Attorney General,*
                   Respondent.
_____________________________________

FOR PETITIONER:                           Tanya T. Dorman, Dorman Law Firm, LLC,
                                          Hartford, Connecticut.1

*
 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Loretta E.
Lynch is automatically substituted for former Attorney General Eric H. Holder, Jr. as
Respondent.

1   Tanya T. Dorman submitted a brief in support of the petition for review, but on
FOR RESPONDENT:                          Benjamin C. Mizer, Principal Deputy Assistant
                                         Attorney General; Terri J. Scadron, Assistant
                                         Director; Richard Zanfardino, Trial Attorney,
                                         Office of Immigration Litigation, United States
                                         Department of Justice, Washington, D.C.

      UPON DUE CONSIDERATION of this petition for review of a Board of

Immigration Appeals (“BIA”) decision entered on October 17, 2012, IT IS HEREBY

ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED.

      Petitioner Franklin Vazquez, a native and citizen of Ecuador, seeks review of an

October 17, 2014 BIA decision upholding a December 17, 2012 Immigration Judge (“IJ”)

decision denying Vazquez a continuance and ordering him removed. See In re Franklin

Vazquez, No. A200 689 126 (B.I.A. Oct. 17, 2014), upholding No. A200 689 126 (Immig.

Ct. Hartford Dec. 17, 2012). We assume the parties’ familiarity with the underlying facts

and procedural history of this case, which we reference only as necessary to explain our

decision to deny review.

      Under the circumstances of this case, we have reviewed both the BIA’s and the IJ’s

decisions. See Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008). We review an IJ’s

denial of a continuance for abuse of discretion, see Sanusi v. Gonzales, 445 F.3d 193, 199

(2d Cir. 2006), utilizing a “highly deferential standard,” Morgan v. Gonzales, 445 F.3d

549, 551 (2d Cir. 2006). An abuse of discretion occurs when an IJ’s “decision rests on an

November 19, 2015, this court granted Dorman’s motion to withdraw as Vazquez’s
counsel.

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error of law (such as application of the wrong legal principle) or a clearly erroneous factual

finding,” or “his decision—though not necessarily the product of a legal error or a clearly

erroneous factual finding—cannot be located within the range of permissible decisions.”

Id. at 551−52 (alterations and internal quotation marks omitted). We identify no such

abuse here. The IJ recognized that Vazquez’s wife’s pregnancy was a “sympathetic

factor[].” Hr’g Tr., Dec. 17, 2012, at 46. Nevertheless, his decision not to grant Vazquez

a sixth continuance in a proceeding begun nearly two years earlier was well within the

range of permissible decisions. See Sanusi v. Gonzales, 445 F.3d at 198−200 (holding

that IJ’s denial of third continuance was not abuse of discretion).2

       Nor has Vazquez identified a due process violation. To establish such a violation,

Vazquez must show that he was “denied a full and fair opportunity to present [his] claims

or that the IJ or BIA otherwise deprived [him] of fundamental fairness.” Burger v.

Gonzales, 498 F.3d 131, 134 (2d Cir. 2007) (internal quotation marks omitted). Further,

he must “allege some cognizable prejudice fairly attributable to the challenged process.”

Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d Cir. 2008) (internal quotation marks

omitted).




2 Although, the government represented that this was Vazquez’s fifth requested
continuance, in April 2011, an IJ granted Vazquez a ten-month “continuance” to seek
counsel. Thus, we construe Vazquez’s request as for a sixth, rather than fifth,
continuance.

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       Vazquez cannot carry this burden because the record demonstrates that he had a full

and fair opportunity to apply for voluntary departure.      The possibility of voluntary

departure was first raised in April 2012.       On August 30, 2012, Vazquez’s counsel

represented that he would be ready to pursue voluntary departure on September 10, 2012.

When, on September 10, 2012, the IJ granted Vazquez’s substitute counsel a 30-day

continuance, the IJ stated, and counsel confirmed, that the voluntary departure issue would

be addressed at the next appearance. Three months later, on December 17, 2012, Vazquez

was given the chance to confer with his attorney regarding voluntary departure and

specifically chose not to apply. These circumstances preclude a claim of insufficient

notice and opportunity to seek voluntary departure.

       Nor has Vazquez shown prejudice. Vazquez has not shown that he was eligible for

voluntary departure or that the agency was likely to grant such discretionary relief.

Further, insofar as Vazquez requested a further continuance so that his departure would

take place after his wife gave birth; as the BIA noted, the 16-month pendency of his appeal

gave him more time than he requested.

       We have considered petitioner’s remaining arguments and conclude that they are

without merit. For the foregoing reasons, the petition for review is DENIED.

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




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