         10-1822-ag
         Polanco v. Holder

                        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 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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 26th day of September, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                ROGER J. MINER,
 9                ROBERT A. KATZMANN,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       VIRGILIO POLANCO,
14                Petitioner,
15
16                   -v.-                                          10-1822-ag
17
18       ERIC H. HOLDER, Jr.,
19                Respondent.
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR PETITIONER:        Albania C. Almanzar, Albania C. Almanzar,
23                              P.C., New York, New York.
24
25       FOR RESPONDENT:        John J. Inkeles, Trial Attorney (Francis
26                              W. Fraser, Senior Litigation Counsel,
27                              Carl H. McIntyre, Jr., Assistant
28                              Director, on the brief), for Tony West,
29                              Assistant Attorney General, Office of
 1                     Immigration Litigation, United States
 2                     Department of Justice, Washington, D.C.
 3
 4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 5   AND DECREED that the petition for review of a Board of
 6   Immigration Appeals decision is GRANTED and the case is
 7   REMANDED to the Board of Immigration Appeals.
 8
 9        Petitioner Virgilio Polanco (“Polanco”) seeks review of
10   an April 13, 2010 order of the Board of Immigration Appeals
11   (“BIA”) dismissing Polanco’s appeal from an April 24, 2009
12   decision of Immigration Judge (“IJ”) Alan Vomacka:
13   (1) denying Polanco’s application for waiver of removability
14   under § 212(c) of the Immigration and Nationality Act
15   (“INA”), 8 U.S.C. § 1182; (2) denying Polanco’s motion for a
16   continuance to give Polanco more time to seek an adjustment
17   of status; and (3) ordering Polanco removed to the Dominican
18   Republic. We assume the parties’ familiarity with the
19   underlying facts, the procedural history, and the issues
20   presented for review.
21
22        We have jurisdiction to review final orders of removal
23   pursuant to 8 U.S.C. § 1252(a)(1). However, we lack
24   “jurisdiction to review any final order of removal against
25   an alien who is removable by reason of having committed a
26   criminal offense covered in section [1227(a)(2)(A)(iii)
27   (aggravated felony) or section 1227(a)(2)(C) (unlawful
28   possession of a firearm)].” 8 U.S.C. § 1252(a)(2)(C).
29   Notwithstanding this jurisdictional bar, we would have
30   jurisdiction to review “constitutional claims or questions
31   of law.” 8 U.S.C. § 1252(a)(2)(D).
32
33        Polanco raises no argument with respect to the
34   determination that he is removable as an aggravated felon
35   and as a felon convicted of a firearm offense. Any such
36   challenge is deemed abandoned. See Yueqing Zhang v.
37   Gonzales, 426 F.3d 540, 541 n.1 (2d Cir. 2005); see also
38   Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998)
39   (“Issues not sufficiently argued in the briefs are
40   considered waived and normally will not be addressed on
41   appeal.”).
42
43        The only issue briefed by Polanco in this Court is
44   whether the IJ abused his discretion in denying Polanco’s

                                  2
 1   motion for a continuance. See Sanusi v. Gonzales, 445 F.3d
 2   193, 199 (2d Cir. 2006) (holding “that 8 U.S.C.
 3   § 1252(a)(2)(B)(ii) does not deprive [this Court] of
 4   jurisdiction to review decisions by IJs to grant or to deny
 5   continuances” and that we review an IJ’s grant or denial of
 6   a continuance for abuse of discretion). An IJ abuses his
 7   discretion in denying a continuance if “(1) [his] decision
 8   rests on an error of law (such as application of the wrong
 9   legal principle) or a clearly erroneous factual finding or
10   (2) [his] decision--though not necessarily the product of a
11   legal error or a clearly erroneous factual finding--cannot
12   be located within the range of permissible decisions.”
13   Zervos v. Verizon New York, Inc., 252 F.3d 163, 169 (2d Cir.
14   2001) (footnote omitted). Therefore, the only way for
15   Polanco to avoid the jurisdictional bar of § 1252(a)(2)(C)
16   is if the IJ’s decision rested on a legal error.
17
18        Although the IJ acknowledged that he may have had the
19   authority to delay Polanco’s removal proceeding for a brief
20   period in order for Polanco’s wife to obtain citizenship and
21   to file an I-130 visa petition on Polanco’s behalf, A 56, he
22   was unaware of any “rule from the [BIA] and also recognized
23   and generally accepted by the higher courts” that would
24   permit him to delay the proceeding for more than a year to
25   give Polanco’s wife more time to obtain citizenship. A 56.
26   In Drax v. Reno, this Court acknowledged that an immigration
27   judge “has broad discretion to adjourn proceedings in order
28   to enable an alien to file the necessary paperwork to seek
29   various kinds of relief,” and indeed observed that a
30   “willing” IJ could grant a fifteen-month continuance. 338
31   F.3d 98, 117 & n.25 (2d Cir. 2003); see also Freire v.
32   Holder, 647 F.3d 67, 70 (2d Cir. 2011) (holding that
33   “Immigration Judges have broad discretionary authority to
34   grant a motion for continuance for good cause shown”
35   (internal quotation marks omitted)).
36
37        In view of our observation in Drax, we remand to the
38   BIA for it to determine whether the IJ had discretion, in
39   the circumstances of this case, to grant a continuance. See
40   Matter of Hashmi, 24 I. & N. Dec. 785, 790-91 (B.I.A. 2009)
41   (articulating standards for determining a motion for
42   continuance). If so, the BIA will remand for the IJ to
43   decide if he would have exercised such discretion.
44

                                  3
1        For the foregoing reasons, the petition for review is
2   GRANTED and the case is REMANDED to the BIA.
3
4
5                              FOR THE COURT:
6                              CATHERINE O’HAGAN WOLFE, CLERK
7
8
9




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