                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-1351


ERWIN RUBEN CESPEDES,

                Petitioner,

          v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.



                              No. 13-1737


ERWIN RUBEN CESPEDES,

                Petitioner,

          v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.



On Petitions for Review of Orders of the Board of Immigration
Appeals.


Submitted:   September 27, 2013             Decided:   October 11, 2013


Before WILKINSON, KEENAN, and WYNN, Circuit Judges.


Petitions denied by unpublished per curiam opinion.
Randall L. Johnson, JOHNSON & ASSOCIATES, P.C., Arlington,
Virginia, for Petitioner.   Stuart F. Delery, Assistant Attorney
General, Jennifer L. Lightbody, Senior Litigation Counsel, Aimee
J. Carmichael, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

            Erwin Ruben Cespedes, a native and citizen of Bolivia,

petitions    for   review     of   orders   of   the   Board    of   Immigration

Appeals (“Board”) sustaining in part and dismissing in part his

appeal from the immigration judge’s order finding that he was

removable    and   not   eligible     for   cancellation       of    removal   and

denying the motion for reconsideration.                We deny the petitions

for review.

            Under 8 U.S.C. § 1227(a)(2)(B)(i) (2006), an alien at

any time after admission who is convicted of an offense relating

to   a    controlled     substance,    “other     than    a     single   offense

involving possession for one’s own use of 30 grams or less of

marijuana,” is removable.          The Board agreed with the immigration

judge’s    finding     that   Cespedes’     conviction    for    possession     of

marijuana with intent to sell, give or distribute, in violation

of Va. Code Ann. § 18.2-248.1 (2009), was a controlled substance

offense and that it was not a conviction that could include

possession of marijuana for one’s own use.

            “When the issue on appeal ‘turns on an interpretation

of the [Immigration and Nationality Act] — a statute that the

BIA administers — we afford the BIA deference under the familiar




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Chevron * standard.’”        Cervantes v. Holder, 597 F.3d 229, 232 (4th

Cir. 2010) (quoting Midi v. Holder, 566 F.3d 132, 136 (4th Cir.

2009)).      Under    Chevron,      “the       plain   meaning    of       the   statute

controls     if    the    provision        in     question       is    unambiguous.”

Saintha v. Mukasey, 516 F.3d 243, 251 (4th Cir. 2008).                              If,

however, “the statute is silent or ambiguous with respect to the

specific issue before us, the question for this court becomes

whether    the    BIA’s   interpretation         ‘is   based     on    a   permissible

construction of the statute.’”                 Id. (quoting Chevron, 467 U.S.

at 843).

            The    “personal       use”    exception      on     which      petitioner

relies     “is    directed    at    ameliorating        the    potentially        harsh

immigration consequences of the least serious drug violations

only — that is, those involving the simple possession of small

amounts of marijuana.”         Matter of Moncada-Servellon, 24 I. & N.

Dec. 62, 65 (BIA 2007) (conviction for possession of marijuana

in a prison did not qualify for the personal use exception).

The exception is not intended to apply to offenses that are

significantly more serious than simple possession “by virtue of

other statutory elements that greatly increase their severity.”

Id.


      *
       Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837 (1984).



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             We conclude that the Board did not err in finding that

Cespedes’ conviction was a controlled substance offense that did

not include the possibility that he was convicted of possessing

marijuana for his own use.                We note that the statute includes

elements that increase the severity of the offense beyond mere

simple possession.

             Because Cespedes is an alien who was found removable

for having been convicted of a controlled substance offense, we

lack       jurisdiction,         except     as      provided         in     8    U.S.C.

§ 1252(a)(2)(D) (2006), to review the final order of removal.

See 8 U.S.C. § 1252(a)(2)(C).               Under 8 U.S.C. § 1252(a)(2)(D),

we   can    only    consider     “constitutional        claims   or       questions   of

law.”      § 1252(a)(2)(D); see Turkson v. Holder, 667 F.3d 523, 527

(4th Cir. 2012).

             Cespedes argues that the immigration judge abused his

discretion by denying his motion for continuance to pursue a

collateral       attack     of    his     underlying      conviction         based    on

ineffective assistance of counsel.                  An immigration judge “may

grant a continuance for good cause shown.”                     8 C.F.R. § 1003.29

(2013).     The Board will not overturn the denial of a continuance

unless     the     alien   was   deprived      of   a   full   and    fair      hearing.

Matter of Perez-Andrade, 19 I. & N. Dec. 433, 434 (BIA 1987).

The alien must show actual prejudice or harm.                    Matter of Sibrun,

18 I. & N. Dec. 354, 356-57 (BIA 1983).                  We review the denial of

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a motion for a continuance for abuse of discretion.                            Lendo v.

Gonzales, 493 F.3d 439, 441 (4th Cir. 2007); Onyeme v. INS, 146

F.3d 227, 231 (4th Cir. 1998).             We “must uphold the [immigration

judge’s] denial of a continuance ‘unless it was made without a

rational explanation, it inexplicably departed from established

policies,      or    it     rested    on   an        impermissible       basis,    e.g.,

invidious discrimination against a particular race or group.’”

Lendo, 493 F.3d at 441 (quoting Onyeme, 146 F.3d at 231).                                We

conclude that the immigration judge’s denial of the motion for a

continuance was not an abuse of discretion.

            Cespedes        further    argues        that    the     Board   abused     its

discretion     by    denying    his    motion        for    reconsideration       and    by

finding that he was not eligible for cancellation of removal.                             A

motion to reconsider must specify the errors of law or fact in

the   Board’s       prior   decision.          See    8     U.S.C.    § 1229a(c)(6)(c)

(2006); 8 C.F.R. § 1003.2(b) (2013).                      We review the denial of a

motion for reconsideration for abuse of discretion.                           Narine v.

Holder, 559 F.3d 246, 249 (4th Cir. 2009); Jean v. Gonzales, 435

F.3d 475, 481 (4th Cir. 2006).

            Under 8 U.S.C. § 1229b(a) (2006), the Attorney General

may   cancel    removal       for     certain        permanent       residents.         The

applicant must show that he has resided in the United States

continuously for seven years after having been admitted in any

status.     The continuous period is terminated, as is relevant to

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these    petitions,      when     the    alien    has        committed       an      offense

referred to in 8 U.S.C. § 1182(a)(2) (2006), that renders him

removable      under     § 1227(a)(2).              8        U.S.C.     § 1229b(d)(1).

Cespedes’     conviction     is   such    an    offense.            Cespedes      bore   the

burden   of    showing    that    he    was    eligible        for    cancellation        of

removal.      8 U.S.C. § 1229a(c)(4) (2006).

              We conclude that Cespedes failed to show that he had

the requisite seven years’ continuous presence to qualify for

cancellation of removal.           We further conclude that the Board did

not abuse its discretion by denying reconsideration and denying

Cespedes’ request for a remand.               Cespedes failed to show that he

was eligible for cancellation of removal.

              Accordingly, we deny the petitions for review.                              We

dispense      with    oral   argument         because        the     facts     and     legal

contentions     are    adequately       presented       in    the     materials       before

this Court and argument would not aid the decisional process.



                                                                      PETITIONS DENIED




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