         09-4824-ag
         Sienkiewicz v. Holder
                                                                                        BIA
                                                                                   Straus, IJ
                                                                               A089 013 624
                                 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 17th day of November, two thousand ten.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                JON O. NEWMAN,
10                RALPH K. WINTER,
11                     Circuit Judges.
12       ______________________________________
13
14       PAWEL SIENKIEWICZ,
15                Petitioner,
16                                                              09-4824-ag
17                           v.                                 NAC
18
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       ______________________________________
23
24       FOR PETITIONER:                  Justin Conlon, Law Offices of Justin
25                                        Conlon, North Haven, Connecticut.
26
27       FOR RESPONDENT:                  Tony West, Assistant Attorney
28                                        General; Emily Anne Radford,
29                                        Assistant Director; Aviva L.
30                                        Poczter, Senior Litigation Counsel,
31                                        Office of Immigration Litigation,
32                                        Civil Division, United States
33                                        Department of Justice, Washington,
34                                        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

 5   is DENIED.

 6       Petitioner, Pawel Sienkiewicz, a native and citizen of

 7   Poland, seeks review of an October 20, 2009, order of the

 8   BIA affirming the April 21, 2009 decision of Immigration

 9   Judge (“IJ”) Michael W. Straus denying Sienkiewicz’s request

10   for a continuance.    In re Sienkiewicz, No. A089 013 624

11   (B.I.A. Oct. 20, 2009), aff’g No. A089 013 624 (Immig. Ct.

12   Hartford, CT Apr. 21, 2009).    We assume the parties’

13   familiarity with the underlying facts and procedural history

14   of the case.

15       Under the circumstances of this case, we review the

16   decision of the IJ as supplemented by the BIA.    See Yan Chen

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

18   the agency’s denial of a motion for continuance for abuse of

19   discretion.    See Rajah v. Mukasey, 544 F.3d 449, 453 (2d

20   Cir. 2008).    An IJ abuses his discretion in denying a

21   request for a continuance, “if: (1) [his] decision rests on

22   an error of law (such as application of the wrong legal

23   principle) or a clearly erroneous factual finding[;] or (2)


                                    2
 1   [his] decision-though not necessarily the product of a legal

 2   error or a clearly erroneous factual finding-cannot be

 3   located within the range of permissible decisions.”     Id.

 4       On appeal, Sienkiewicz argues that the IJ’s denial of

 5   his request for a continuance to pursue an application to

 6   adjust his status: (1) constituted an abuse of discretion

 7   because it was based on “pure speculation”; and (2) violated

 8   his due process rights because he was not afforded an

 9   opportunity to testify.     In Morgan v. Gonzales, we concluded

10   that an IJ’s denial of a continuance to allow an alien to

11   pursue an application for adjustment of status does not

12   constitute an abuse of discretion or violate a petitioner’s

13   due process rights when, as here, the petitioner does "not

14   dispute that at the time his continuance was denied he was

15   ineligible for adjustment of status.”    445 F.3d 549, 552 (2d

16   Cir. 2006); see also In re Garcia, 16 I. & N. Dec. 653, 657

17   (BIA 1978) (“It clearly would not be an abuse of discretion

18   for the immigration judge to summarily deny a request for a

19   continuance . . . upon his determination that . . . the

20   adjustment application would be denied on statutory

21   grounds”), modified on other grounds by In re Arthur, 20 I.

22   & N. Dec. 475 (BIA 1992).    Accordingly, we find no error in


                                     3
 1   the IJ’s denial of Sienkiewicz’s request for a continuance.

 2   See Morgan, 445 F.3d at 552.

 3       For the foregoing reasons, the petition for review is

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

 5   removal that the Court previously granted in this petition

 6   is VACATED, and any pending motion for a stay of removal in

 7   this petition is DISMISSED as moot. Any pending request for

 8   oral argument in this petition is DENIED in accordance with

 9   Federal Rule of Appellate Procedure 34(a)(2), and Second

10   Circuit Local Rule 34.1(b).

11                                 FOR THE COURT:
12                                 Catherine O’Hagan Wolfe, Clerk
13
14




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