     15-3960
     Roberts v. Sessions
                                                                                        BIA
                                                                                   Straus, IJ
                                                                               A038 996 686

                                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   28th day of September, two thousand seventeen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            PIERRE N. LEVAL,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   PAUL SYLVESTER ROBERTS,
14        Petitioner,
15
16                         v.                                        15-3960
17                                                                   NAC
18   JEFFERSON B. SESSIONS III, UNITED
19   STATES ATTORNEY GENERAL,
20        Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                       Cory Forman, Cohen Forman Barone,
24                                         LLP, New York, N.Y.
25
26   FOR RESPONDENT:                       Benjamin C. Mizer, Principal Deputy
27                                         Assistant Attorney General; Mary
28                                         Jane Candaux, Assistant Director;
29                                         Kurt B. Larson, Senior Litigation
30                                         Counsel, Office of Immigration
31                                         Litigation, United States
32                                         Department of Justice, Washington,
33                                         D.C.
1
2        UPON DUE CONSIDERATION of this petition for review of a

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

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

5    DENIED.

6        Petitioner Paul Sylvester Roberts, a native and citizen of

7    Jamaica, seeks review of a November 10, 2015, decision of the

8    BIA denying his motion to remand and affirming an October 29,

9    2013, decision of an immigration judge (“IJ”) denying his motion

10   for a continuance to pursue post-conviction relief in state

11   court.    In re Paul Sylvester Roberts, No. A038 996 686 (B.I.A.

12   Nov. 10, 2015), aff’g A038 996 686 (Immig. Ct. N.Y. City Oct.

13   29, 2013).     We assume the parties’ familiarity with the

14   underlying facts and procedural history in this case.

15       Under the circumstances of this case, we have reviewed the

16   IJ’s decision as supplemented by the BIA.        See Yan Chen v.

17   Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).

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

19   highly deferential standard of abuse of discretion.”      Morgan

20   v. Gonzales, 445 F.3d 549, 551 (2d Cir. 2006).   An IJ “may grant

21   a motion for continuance for good cause shown,” 8 C.F.R.

22   § 1003.29, and only “abuse[s] his discretion in denying a
                                     2
1    continuance if (1) [his] decision rests on an error of law (such

2    as the application of the wrong legal principle) or a clearly

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

4    necessarily the product of a legal error or a clearly erroneous

5    factual    finding—cannot      be   located    within   the   range   of

6    permissible decisions,” Morgan, 445 F.3d at 551-52 (internal

7    quotation marks omitted).       We generally lack jurisdiction to

8    review a final order of removal against an alien, such as

9    Roberts, who is removable for having been convicted of a

10   controlled substance offense; however, we have jurisdiction to

11   consider constitutional claims and questions of law.           8 U.S.C.

12   §§ 1252(a)(2)(C), (D), 1227(a)(2)(B).

13       Roberts has failed to demonstrate legal or constitutional

14   error in the agency’s continuance denial.         The agency properly

15   denied    Roberts’s   motion    because   he   had   “ample   time”   to

16   collaterally attack his 2009 conviction, any possible vacatur

17   of the conviction was speculative, and his conviction remained

18   final for immigration purposes.         See Elbahja v. Keisler, 505

19   F.3d 125, 129 (2d Cir. 2007) (holding that agency did not abuse

20   its discretion in declining to grant a continuance sought to

21   pursue relief that is “speculative at best” (internal quotation

                                         3
 1   marks omitted)); In re Ponce de Leon, 21 I. & N. Dec. 154, 157

 2   (B.I.A. 1996) (noting that pendency of a post-conviction motion

 3   or other collateral attack on a criminal conviction does not

 4   negate     the    finality      of   that   conviction       for   immigration

 5   purposes).       Therefore, the agency’s continuance denial was not

 6   a product of legal or constitutional error and falls “within

 7   the range of permissible decisions.”                See Morgan, 445 F.3d at

 8   551-52; Elbahja, 505 F.3d at 129; In re Ponce de Leon, 21 I.

 9   & N. Dec. at 157.

10        Roberts argues that the BIA erred by misconstruing his

11   state court motion as based on a claim of ineffective assistance

12   under Padilla v. Kentucky, 559 U.S. 356, 374 (2010), rather than

13   on   an   ineffective     assistance        claim    based    on   affirmative

14   misadvice.       See, e.g., Kovacs v. United States, 744 F.3d 44,

15   53-54     (2d    Cir.   2014)    (distinguishing       Padilla     claim   from

16   ineffective assistance claim based on affirmative misadvice

17   about immigration consequences).              His argument is misplaced

18   for two reasons: first, Roberts very clearly and repeatedly

19   characterized his state court motion for post-conviction relief

20   as a “Padilla motion” in his brief to the BIA and did not attach

21   a copy of the motion; and, second, Roberts did not identify any

                                             4
1    other basis for his motion before the IJ and had not even filed

2    his state court motion until appealing from the IJ’s decision.

3    The BIA ultimately affirmed the IJ’s continuance denial because

4    any prospective post-conviction relief was speculative and

5    Roberts’s conviction remained final for immigration purposes.

6    Therefore, even if we were to conclude that the BIA erred in

7    construing Roberts’s state court motion as based on a Padilla

8    claim, remand on this basis would be futile.     See Hua Lin v.

9    U.S. Dep’t of Justice, 453 F.3d 99, 106-07 (2d Cir. 2006).

10       Lastly, the Government is correct that Roberts does not

11   specifically challenge the BIA’s denial of his motion to remand.

12   See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998)

13   (“Issues not sufficiently argued in the briefs are considered

14   waived and normally will not be addressed on appeal.”).    Even

15   if Roberts had not waived review, the BIA did not err in

16   construing Roberts’s submission of new evidence on appeal as

17   a motion to remand.   See Li Yong Cao v. U.S. Dep’t of Justice,

18   421 F.3d 149, 156 (2d Cir. 2005).      Nor did the BIA commit

19   constitutional or legal error by denying the motion because the

20   evidence of Roberts’s pending collateral attack did not change

21   the validity of his conviction for immigration purposes.    See

                                    5
1    id.; In re Ponce de Leon, 21 I. & N. Dec. at 157.

2        For the foregoing reasons, the petition for review is

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

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

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

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

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

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

9    34.1(b).

10                                 FOR THE COURT:
11                                 Catherine O’Hagan Wolfe, Clerk




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