12-1611
Guzman 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 TO A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
           At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
StatesthCourthouse, 40 Foley Square, in the City of New York, on
the 13 day of March, two thousand thirteen.
PRESENT:   RALPH K. WINTER,
           DENNY CHIN,
           CHRISTOPHER F. DRONEY,
                     Circuit Judges.

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JUNIOR RAFAEL VARGAS GUZMAN, AKA
JUNIOR GUZMAN, AKA JUNIOR VARGAS,
               Petitioner,

                   -v.-                        12-1611-ag

ERIC H. HOLDER, JR., United States
Attorney General,
               Respondent.
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FOR PETITIONER:            Thomas E. Moseley, Newark, New Jersey.

FOR RESPONDENT:            Stuart F. Delery, Principal
                           Deputy Assistant Attorney General, Mary
                           Jane Candaux, Assistant Director, Robbin
                           K. Blaya, Trial Attorney, Office of
                           Immigration Litigation, for Eric H.
                           Holder, Jr., United States Attorney
                           General, United States Department of
                           Justice, Washington, District of
                           Columbia.
           Petition for review of a decision of the Board of

Immigration Appeals ("BIA").
           UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND

DECREED that Respondent's motion to dismiss the petition for

review is GRANTED and the petition is DISMISSED.

           Petitioner Junior Rafael Vargas Guzman, a native and

citizen of the Dominican Republic, seeks review of the April 12,

2012, decision of the BIA affirming the December 1, 2011,

decision of Immigration Judge ("IJ") Steven J. Connelly, denying

Vargas Guzman's fourth request for a continuance and ordering him

removed.   In re Junior Rafael Vargas Guzman, No. A044 447 904

(B.I.A. Apr. 12, 2012), aff'g No. A044 447 904 (Immig. Ct.

Batavia Dec. 1, 2011).   Vargas Guzman was convicted in state

court of attempted robbery in the second degree in May 2001 and

criminal possession of a weapon in the third degree in April

2005.   We assume the parties' familiarity with the underlying

facts, the procedural history of the case, and the issues on

appeal.
           Vargas Guzman sought a continuance in his removal

proceedings while awaiting the result of his post-conviction

challenge in a collateral state court proceeding.   In that

proceeding, Vargas Guzman argued, based on Padilla v. Kentucky,

559 U.S. 356 (2010), that his 2001 robbery conviction should be

overturned because his attorney failed to advise him of the

immigration consequences of his guilty plea.   He argued that if

the Supreme Court found Padilla to apply retroactively, his

robbery conviction would be overturned, he would no longer be

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convicted of an aggravated felony, and he would therefore be

eligible for cancellation of removal.    8 U.S.C. § 1229b(a).

          The Supreme Court has now ruled, however, that Padilla

does not have retroactive effect.     Chaidez v. United States, 586

U.S. __ (Feb. 20, 2013) (“We conclude that, under the principle

set out in Teague v. Lane, 489 U.S. 288 (1989), Padilla does not

have retroactive effect.”).   Therefore, any constitutional or

legal claim that Vargas Guzman might have had based on the

purported retroactive effect of Padilla is now moot.
Accordingly, we lack jurisdiction to review the final order of

removal in this case.   See 8 U.S.C. § 1252(a)(2)(C) and

(a)(2)(D).

          We have considered petitioner's remaining arguments and

conclude they are without merit.    For the foregoing reasons, the
Respondent's motion is GRANTED and the petition for review is

DISMISSED.

                               FOR THE COURT:
                               Catherine O'Hagan Wolfe, Clerk




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