         12-894
         Heredia v. Holder
                                                                                        BIA
                                                                                   Ferris, IJ
                                                                               A074 194 050
                              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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 27th day of March, two thousand thirteen.
 5
 6       PRESENT:
 7                JOHN M. WALKER, JR.,
 8                ROBERT D. SACK,
 9                RICHARD C. WESLEY,
10                     Circuit Judges.
11       _______________________________________
12
13       MIGUEL ANGEL HEREDIA, AKA MIGUEL
14       HEREDIA, AKA ANGEL HEREDIA, AKA
15       MIGUEL HEREIDA, AKA MIGUEL A. HEREIDA,
16                Petitioner,
17
18                           v.                                 12-894
19
20       ERIC H. HOLDER, JR., UNITED STATES
21       ATTORNEY GENERAL,
22                Respondent.
23       ______________________________________
24
25       FOR PETITIONER:               George A. Terezakis, Mineola, New
26                                     York.
27
28       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
29                                     Attorney General; Stephen J. Flynn,
     1                             Assistant Director; Lynda A. Do,
     2                             Attorney, Office of Immigration
     3                             Litigation, U.S. Department of
     4                             Justice, 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

     9   is DENIED.

10           Petitioner Miguel Angel Heredia, a native and citizen

11       of the Dominican Republic, seeks review of the February 6,

12       2012, decision of the BIA affirming the October 21, 2011,

13       decision of Immigration Judge (“IJ”) Noel A. Ferris, denying

14       Heredia’s request for a continuance and ordering him

15       removed.     In re Miguel Angel Heredia, No. A074 194 050

16       (B.I.A. Feb. 6, 2012), aff’g No. A074 194 050 (Immig. Ct.

17       N.Y. City Oct. 21, 2011).    We assume the parties’

18       familiarity with the underlying facts and procedural history

19       in this case.

20           Under the circumstances of this case, we have reviewed

21       both the IJ’s and the BIA’s opinions “for the sake of

22       completeness.”     Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

23       2008) (quotation marks omitted).    Heredia challenges only

24       the agency’s denial of a continuance and we review that

25       denial “under a highly deferential standard of abuse of

                                         2
 1   discretion.”   Morgan v. Gonzales, 445 F.3d 549, 551 (2d Cir.

 2   2006).   An IJ “may grant a motion for continuance for good

 3   cause shown,” 8 C.F.R. § 1003.29, and we will find an abuse

 4   of discretion in denying a continuance only if the judge’s

 5   decision “rests on an error of law (such as application of

 6   the wrong legal principle) or a clearly erroneous factual

 7   finding or [if the] decision – though not necessarily the

 8   product of a legal error or a clearly erroneous factual

 9   finding – cannot be located within the range of permissible

10   decisions,” Morgan, 445 F.3d at 551-52 (internal quotation

11   marks, brackets, and citation omitted).

12       The IJ did not abuse her discretion in denying

13   Heredia’s request for a continuance.   The IJ recognized

14   that, under certain circumstances, a continuance might be

15   warranted to pursue post-conviction relief, but she

16   reasonably explained that Heredia had not established good

17   cause for such a continuance because he had not filed a

18   motion to vacate his conviction or submitted any evidence as

19   to the merit of a challenge to his conviction.   See Elbahja

20   v. Keisler, 505 F.3d 125, 129 (2d Cir. 2007) (concluding

21   that an IJ does not abuse his or her discretion by denying a

22   continuance sought to pursue relief that is “speculative at


                                   3
 1   best”).   Furthermore, as the BIA noted, Heredia’s conviction

 2   remained final for purposes of his removability.       See

 3   8 U.S.C. § 1101(a)(48)(A); see also Waugh v. Holder, 642

 4   F.3d 1279, 1284 (10th Cir. 2011).

 5       Moreover, although we have found it appropriate in

 6   certain circumstances to remand for the BIA to define the

 7   boundaries of an IJ’s discretion to grant a continuance,

 8   remand is not warranted here.       See Rajah v. Mukasey, 544

 9   F.3d 449, 454-55 (2d Cir. 2008).      Indeed, even if we were to

10   remand for the BIA to establish a standard for granting

11   continuances to pursue post-conviction relief under Padilla

12   v. Kentucky, 559 U.S. 356 (2010), Heredia could not

13   demonstrate that the IJ’s decision constituted an abuse of

14   discretion under any standard so established because he

15   failed to submit evidence of a pending motion to vacate

16   based on Padilla.   See Elbahja, 505 F.3d at 129.      We note

17   that the U.S. Supreme Court’s recent decision in Chaidez v.

18   United States, holding that Padilla does not apply

19   retroactively to convictions that were already final on

20   direct review when Padilla was issued in 2010, may implicate

21   whether the New York courts would apply Padilla in any post-

22   conviction proceeding that Heredia might pursue.       See


                                     4
 1   Chaidez v. United States, 133 S. Ct. 1103, 1113 (2013); see

 2   also Griffith v. Kentucky, 479 U.S. 314, 321 (1987)

 3   (discussing principles of retroactivity); Danforth v.

 4   Minnesota, 552 U.S. 264, 266, 282, 291 (2008).    Similarly,

 5   because Heredia cannot establish that he was prejudiced by

 6   the IJ’s denial of his request for a continuance, his due

 7   process claims are without merit.     See Garcia-Villeda v.

 8   Mukasey, 531 F.3d 141, 149 (2d Cir. 2008) (recognizing that

 9   an applicant must demonstrate that he was prejudiced to

10   establish a due process violation).

11       For the foregoing reasons, the petition for review is

12   DENIED.

13
14                              FOR THE COURT:
15                              Catherine O’Hagan Wolfe, Clerk
16




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