Jose Arduengo-Rivera v. Eric Holder, Jr.

Filing

UNPUBLISHED OPINION FILED. [14-60484 Affirmed ] Judge: ECP , Judge: PRO , Judge: JEG. Mandate pull date is 08/24/2015; denying motion to stay further proceedings in this court filed by Petitioner Mr. Jose Arduengo-Rivera [7789976-2] [14-60484]

Case: 14-60484

Document: 00513103431

Page: 1

Date Filed: 07/02/2015

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-60484
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
July 2, 2015
Lyle W. Cayce
Clerk

JOSE ARDUENGO-RIVERA, also known as Jose Arduengo Rivera,
Petitioner
v.
LORETTA LYNCH, U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A205 075 883
Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *

Jose Arduengo-Rivera petitions for review of a dismissal by the Board of
Immigration Appeals (BIA) of his appeal of the denial of his motion for a
continuance. He contends that the denial of his motion was an abuse of
discretion. He also contends that the immigration judge (IJ) violated his due
process rights during his removal hearing. Because the BIA’s decision was

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
*

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Document: 00513103431

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Date Filed: 07/02/2015

No. 14-60484
based on the IJ’s decision, we will consider both in this case. See Theodros v.
Gonzales, 490 F.3d 396, 400 (5th Cir. 2007).
“The grant of a continuance lies within the sound discretion of the IJ,
who may grant a continuance for good cause shown.” Masih v. Mukasey, 536
F.3d 370, 373 (5th Cir. 2008). To establish good cause, “an alien at least must
make a reasonable showing that the lack of preparation occurred despite a
diligent good faith effort to be ready to proceed and that any additional
evidence he seeks to present is probative, noncumulative, and significantly
favorable to the alien.” Matter of Sibrun, 18 I&N Dec. 354, 356 (BIA 1983).
The alien must also show that “the denial caused him actual prejudice and
harm and materially affected the outcome of his case.” Id. at 356-57.
The BIA’s determination that the IJ properly denied Arduengo-Rivera’s
continuance request is supported by the record, which establishes that
Arduengo-Rivera moved for a continuance solely because his attorney was not
prepared to take witness testimony or present evidence regarding the date and
manner of Arduengo-Rivera’s entry into the United States. Arduengo-Rivera’s
lack of diligence constituted a reasonable basis for the IJ to deny the
continuance motion. See Sibrun, 18 I&N Dec. at 356. Even if the IJ had
granted the continuance, Arduengo-Rivera’s request for adjustment of status
to that of a person admitted for permanent residence would have nevertheless
failed in light of both his failure to apply for adjustment of status and his
concession that his prior narcotics conviction rendered him statutorily
ineligible for such relief. See 8 U.S.C. § 1182(a)(2)(A)(i)(II), § 1255(a); see also
Matter of Sanchez-Sosa, 25 I&N Dec. 807, 815 (BIA 2012) (holding that, as a
general rule, an alien who is unlikely to be granted relief should not be
permitted to engage in dilatory tactics to forestall the conclusion of removal
proceedings).

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Arduengo-Rivera’s due process argument, which we review de novo, is
equally without merit. An alien raising a due process argument must first
show substantial prejudice. Anwar v. I.N.S., 116 F.3d 140, 144 (5th Cir. 1997).
Because Arduengo-Rivera was not eligible for adjustment of status as a result
of his failure to file an application and his prior narcotics conviction, he has
failed to establish actual prejudice. Id.
Arduengo-Rivera’s petition for review is DENIED. His motion to hold
these proceedings in abeyance is also DENIED.

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