Juan Pena-Torres v. Loretta Lynch

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: A045-923-260. Copies to all parties and the district court/agency. [1000013871].. [16-1887]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-1887

JUAN A. PENA-TORRES, a/k/a Juan Pena-Torres, a/k/a Anthony
Torres-Pena, a/k/a Juan Antonio Torres,
Petitioner,
v.
DANA JAMES BOENTE, Acting Attorney General,
Respondent.

On Petition for Review of an Order of the Board of Immigration
Appeals.

Submitted:

January 25, 2017

Decided:

January 31, 2017

Before DUNCAN, WYNN, and HARRIS, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Randall L. Johnson, JOHNSON & ASSOCIATES, P.C., Arlington,
Virginia, for Petitioner.
Benjamin C. Mizer, Principal Deputy
Assistant
Attorney
General,
Terri
J.
Scadron,
Assistant
Director, Greg D. Mack, Senior Litigation Counsel, 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Unpublished opinions are not binding precedent in this circuit.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:
Juan A. Pena-Torres, a native and citizen of El Salvador,
petitions for review of an order of the Board of Immigration
Appeals

(Board)

dismissing

his

appeal

from

the

immigration

judge’s (IJ) decision denying his motion for a continuance and
his application for deferral of removal under the Convention
Against Torture (CAT).

For the reasons set forth below, we deny

the petition for review.
Under

8

U.S.C.

§

1252(a)(2)(C)

(2012),

we

lack

jurisdiction, except as provided in 8 U.S.C. § 1252(a)(2)(D)
(2012),

to

review

the

final

order

of

removal

of

an

alien

convicted of certain enumerated crimes, including an aggravated
felony.
review

Pursuant to this provision, we retain jurisdiction “to
factual

determinations

that

trigger

the

jurisdiction-

stripping provision, such as whether [Pena-Torres] [i]s an alien
and whether []he has been convicted of an aggravated felony.”
Ramtulla v. Ashcroft, 301 F.3d 202, 203 (4th Cir. 2002).
we

confirm

U.S.C.

§

these

two

factual

1252(a)(2)(C),

determinations,

(D),

we

can

“constitutional claims or questions of law.”

then,
only

Once

under

8

consider

§ 1252(a)(2)(D);

see Turkson v. Holder, 667 F.3d 523, 526-27 (4th Cir. 2012).
We review the denial of a motion for 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).
2

We

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will uphold the 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

group.”

discrimination

Lendo,

493

process,

in

F.3d

against

at

441

a

particular

(internal

race

quotation

or

marks

omitted).
Due

the

context

of

an

immigration

hearing,

requires that an alien be given “an opportunity to be heard at a
meaningful time and in a meaningful manner, i.e., [to] receive a
full and fair hearing on [his] claims.”
316,

321-22

(4th

Cir.

2002).

To

Rusu v. INS, 296 F.3d

establish

a

due

process

violation during removal proceedings, an alien must show: “(1)
that a defect in the proceeding rendered it fundamentally unfair
and (2) that the defect prejudiced the outcome of the case.”
Anim v. Mukasey, 535 F.3d 243, 256 (4th Cir. 2008).
the

second

prong,

a

reviewing

court

may

find

Focusing on

prejudice

only

“when the rights of an alien have been transgressed in such a
way as is likely to impact the results of the proceedings.”
Rusu,

296

F.3d

at

320-21

(alteration

and

internal

quotation

marks omitted).
We conclude that Pena-Torres failed to show he was denied
due process when he was denied a continuance.

There is no

evidence that, if he were given more time, the results of the
proceedings would have been impacted.
3

We also conclude that

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Pena-Torres
regarding
presumption

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has
the

not

shown

findings

that

his

that

that

drug

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he

he

was

was

conviction

denied

unable
was

for

due

to
a

process

rebut

the

particularly

serious crime or that he was ineligible for deferral of removal
under the CAT.
Accordingly, because we find no merit to Pena-Torres’ due
process claims, we deny the petition 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.
PETITION DENIED

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