Erwin Cespedes v. Eric Holder, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: A079-241-548. Copies to all parties and the district court/agency. [999216872]. [13-1351, 13-1737]

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UNPUBLISHED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Petitions denied by unpublished per curiam opinion.

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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Unpublished opinions are not binding precedent in this circuit.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

denying the motion for reconsideration.

of

removal

and

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.
judge’s

finding

that

The Board agreed with the immigration

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.’”

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Cervantes v. Holder, 597 F.3d 229, 232 (4th

Cir. 2010) (quoting Midi v. Holder, 566 F.3d 132, 136 (4th Cir.
2009)).

Under

controls

if

Chevron,

the

“the

provision

plain
in

meaning

question

of
is

the

statute

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

construction of the statute.’”

‘is

based

on

a

permissible

Id. (quoting Chevron, 467 U.S.

at 843).
The
relies

“is

“personal
directed

use”

at

exception

ameliorating

on
the

which

petitioner

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).
we

can

law.”

only

consider

Under 8 U.S.C. § 1252(a)(2)(D),

“constitutional

claims

or

questions

of

§ 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

ineffective assistance of counsel.

conviction

unless

on

An immigration judge “may

grant a continuance for good cause shown.”
(2013).

based

8 C.F.R. § 1003.29

The Board will not overturn the denial of a continuance
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.
18 I. & N. Dec. 354, 356-57 (BIA 1983).
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Matter of Sibrun,

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
discretion

by

further

denying

his

argues

that

motion

for

the

Board

abused

reconsideration

and

finding that he was not eligible for cancellation of removal.

its
by
A

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

Board’s

prior

decision.

See

(2006); 8 C.F.R. § 1003.2(b) (2013).

8

U.S.C.

§ 1229a(c)(6)(c)

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

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petitions,

when

the

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alien

has

committed

an

offense

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

under

conviction

of

removal.

§ 1227(a)(2).

showing

is

that

such
he

8

an

was

U.S.C.

offense.
eligible

§ 1229b(d)(1).

Cespedes
for

bore

cancellation

the
of

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.
dispense

with

contentions

are

oral

argument

adequately

because

presented

in

the
the

facts

We

and

legal

materials

before

this Court and argument would not aid the decisional process.

PETITIONS DENIED

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