17-133 Lora v. Sessions BIA Buchanan, IJ A041 598 311 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.
1 At a stated term of the United States Court of Appeals for 2 the Second Circuit, held at the Thurgood Marshall United States 3 Courthouse, 40 Foley Square, in the City of New York, on the 4 28th day of November, two thousand seventeen. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 ROBERT D. SACK, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 DANILDA LORA, AKA DANILDA OSORIA, 14 AKA DANILDA LORA OSORIA, AKA 15 DANILDA L. OSORIA, 16 Petitioner, 17 18 v. 17-133 19 NAC 20 JEFFERSON B. SESSIONS III, 21 UNITED STATES ATTORNEY GENERAL, 22 Respondent. 23 _____________________________________ 24 25 FOR PETITIONER: Craig Relles, White Plains, NY. 26 27 FOR RESPONDENT: Chad A. Readler, Acting Assistant 28 Attorney General; Shelley R. Goad, 29 Assistant Director; Laura Halliday 30 Hickein, Trial Attorney, Office of 31 Immigration Litigation, United 32 States Department of Justice, 33 Washington, DC. 1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 DENIED.
5 Petitioner Danilda Lora, a native and citizen of the
6 Dominican Republic, seeks review of a December 20, 2016 decision
7 of the BIA affirming a July 20, 2016 decision of an Immigration
8 Judge (“IJ”) denying Lora’s application for relief under the
9 Convention Against Torture (“CAT”). In re Danilda Lora, No. A
10 041 598 311 (B.I.A. Dec. 20, 2016), aff’g No. A 041 598 311 (Immig.
11 Ct. N.Y.C. July 20, 2016). We assume the parties’ familiarity
12 with the underlying facts and procedural history in this case.
13 We have reviewed the IJ’s decision as modified by the BIA,
14 and, as did the BIA, we assume Lora’s credibility,
15 notwithstanding the IJ’s mixed findings in that regard. See Xue
16 Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.
17 2005); Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
18 Lora’s conviction in 2014 for drug-related offenses limits our
19 review to constitutional claims and questions of law, as to
20 which we review the BIA’s rulings de novo. 8 U.S.C.
21 § 1252(a)(2)(C), (D); Ortiz-Franco v. Holder, 782 F.3d 81, 90
22 (2d Cir. 2015). Lora presents two such claims here: that the
2 1 agency’s denial of her requests for a continuance and subpoena
2 violated her constitutional right to due process, and that her
3 removal effects a constitutionally disproportionate punishment
4 for her conviction. As discussed below, the claims lack merit.
5 I. Continuance and Subpoena
6 Aliens are entitled to receive due process in removal
7 proceedings. Reno v. Flores, 507 U.S. 292, 306 (1993). To state
8 a due process claim, Lora must show (1) that she was denied a
9 “full and fair opportunity” to present her claims or that she
10 was otherwise deprived of “fundamental fairness,” Burger v.
11 Gonzales, 498 F.3d 131, 134 (2d Cir. 2007) (internal quotation
12 marks omitted), and (2) resulting “cognizable prejudice,”
13 Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d Cir. 2008)
14 (internal quotation marks omitted). Lora’s due process
15 challenges fail both prongs of this test.
16 An IJ’s continuance ruling does not ordinarily implicate
17 a constitutional claim or question of law, because “IJs are
18 accorded wide latitude in calendar management,” and such
19 decisions are reviewed “under a highly deferential standard of
20 abuse of discretion.” Morgan v. Gonzales, 445 F.3d 549, 551 (2d
21 Cir. 2006).
22 Further, although an IJ may grant a continuance where a
3 1 petitioner shows good cause for the request, 8 C.F.R. § 1003.29,
2 the IJ considers the Government’s position and the merits of
3 the underlying claim for relief, as well as “the reason for the
4 continuance and other procedural factors,” Matter of Hashmi,
5 24 I. & N. Dec. 785, 790 (B.I.A. 2009), in making a decision.
6 Here, Lora did not show she was denied fundamental fairness
7 in the denial of her request for a continuance. The agency
8 applied the correct standard in reaching its decision. The IJ
9 considered the Government’s opposition to a continuance, and
10 it identified procedural and substantive concerns related to
11 the requests, including the timing of the requests, Lora’s
12 failure to comply with the Immigration Court Practice Manual
13 in making the request, and her failure to proffer detailed
14 information about the testimony that her proposed witness,
15 Mario Osorio, would give were a continuance granted. Lora
16 received a sufficiently full and fair opportunity to make her
17 case for the continuance.
18 Lora argues that Osorio’s testimony would have been crucial
19 to her case. But although Osorio may have been expected to be
20 a key witness, Lora did not establish that his testimony would
21 have provided anything more than speculation about any threats
22 against her. Because Lora bore the burden of showing that
4 1 torture was more likely than not, her allegations about Osorio’s
2 testimony are too vague to demonstrate the cognizable prejudice
3 required to make out a due process violation. See 8 C.F.R.
4 § 1208.16(c)(2); Jian Xing Huang v. U.S. INS, 421 F.3d 125, 129
5 (2d Cir. 2005) (“In the absence of solid support in the record
6 . . . , [an applicant’s] fear is speculative at best.”).
7 Lora’s challenge to the denial of a subpoena fails for
8 essentially the same reason. Lora argues that the IJ was
9 required by regulation to subpoena the Bureau of Prisons and
10 require the Bureau to make Osorio available to testify. The IJ
11 is required to grant a subpoena, however, only if the testimony
12 is “essential.” 8 C.F.R. § 1003.35(b)(3). As discussed above,
13 Lora did not show that Osorio’s testimony was essential because
14 she provided neither an affidavit from Osorio nor detailed
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17-133 Lora v. Sessions BIA Buchanan, IJ A041 598 311 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.
1 At a stated term of the United States Court of Appeals for 2 the Second Circuit, held at the Thurgood Marshall United States 3 Courthouse, 40 Foley Square, in the City of New York, on the 4 28th day of November, two thousand seventeen. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 ROBERT D. SACK, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 DANILDA LORA, AKA DANILDA OSORIA, 14 AKA DANILDA LORA OSORIA, AKA 15 DANILDA L. OSORIA, 16 Petitioner, 17 18 v. 17-133 19 NAC 20 JEFFERSON B. SESSIONS III, 21 UNITED STATES ATTORNEY GENERAL, 22 Respondent. 23 _____________________________________ 24 25 FOR PETITIONER: Craig Relles, White Plains, NY. 26 27 FOR RESPONDENT: Chad A. Readler, Acting Assistant 28 Attorney General; Shelley R. Goad, 29 Assistant Director; Laura Halliday 30 Hickein, Trial Attorney, Office of 31 Immigration Litigation, United 32 States Department of Justice, 33 Washington, DC. 1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 DENIED.
5 Petitioner Danilda Lora, a native and citizen of the
6 Dominican Republic, seeks review of a December 20, 2016 decision
7 of the BIA affirming a July 20, 2016 decision of an Immigration
8 Judge (“IJ”) denying Lora’s application for relief under the
9 Convention Against Torture (“CAT”). In re Danilda Lora, No. A
10 041 598 311 (B.I.A. Dec. 20, 2016), aff’g No. A 041 598 311 (Immig.
11 Ct. N.Y.C. July 20, 2016). We assume the parties’ familiarity
12 with the underlying facts and procedural history in this case.
13 We have reviewed the IJ’s decision as modified by the BIA,
14 and, as did the BIA, we assume Lora’s credibility,
15 notwithstanding the IJ’s mixed findings in that regard. See Xue
16 Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.
17 2005); Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
18 Lora’s conviction in 2014 for drug-related offenses limits our
19 review to constitutional claims and questions of law, as to
20 which we review the BIA’s rulings de novo. 8 U.S.C.
21 § 1252(a)(2)(C), (D); Ortiz-Franco v. Holder, 782 F.3d 81, 90
22 (2d Cir. 2015). Lora presents two such claims here: that the
2 1 agency’s denial of her requests for a continuance and subpoena
2 violated her constitutional right to due process, and that her
3 removal effects a constitutionally disproportionate punishment
4 for her conviction. As discussed below, the claims lack merit.
5 I. Continuance and Subpoena
6 Aliens are entitled to receive due process in removal
7 proceedings. Reno v. Flores, 507 U.S. 292, 306 (1993). To state
8 a due process claim, Lora must show (1) that she was denied a
9 “full and fair opportunity” to present her claims or that she
10 was otherwise deprived of “fundamental fairness,” Burger v.
11 Gonzales, 498 F.3d 131, 134 (2d Cir. 2007) (internal quotation
12 marks omitted), and (2) resulting “cognizable prejudice,”
13 Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d Cir. 2008)
14 (internal quotation marks omitted). Lora’s due process
15 challenges fail both prongs of this test.
16 An IJ’s continuance ruling does not ordinarily implicate
17 a constitutional claim or question of law, because “IJs are
18 accorded wide latitude in calendar management,” and such
19 decisions are reviewed “under a highly deferential standard of
20 abuse of discretion.” Morgan v. Gonzales, 445 F.3d 549, 551 (2d
21 Cir. 2006).
22 Further, although an IJ may grant a continuance where a
3 1 petitioner shows good cause for the request, 8 C.F.R. § 1003.29,
2 the IJ considers the Government’s position and the merits of
3 the underlying claim for relief, as well as “the reason for the
4 continuance and other procedural factors,” Matter of Hashmi,
5 24 I. & N. Dec. 785, 790 (B.I.A. 2009), in making a decision.
6 Here, Lora did not show she was denied fundamental fairness
7 in the denial of her request for a continuance. The agency
8 applied the correct standard in reaching its decision. The IJ
9 considered the Government’s opposition to a continuance, and
10 it identified procedural and substantive concerns related to
11 the requests, including the timing of the requests, Lora’s
12 failure to comply with the Immigration Court Practice Manual
13 in making the request, and her failure to proffer detailed
14 information about the testimony that her proposed witness,
15 Mario Osorio, would give were a continuance granted. Lora
16 received a sufficiently full and fair opportunity to make her
17 case for the continuance.
18 Lora argues that Osorio’s testimony would have been crucial
19 to her case. But although Osorio may have been expected to be
20 a key witness, Lora did not establish that his testimony would
21 have provided anything more than speculation about any threats
22 against her. Because Lora bore the burden of showing that
4 1 torture was more likely than not, her allegations about Osorio’s
2 testimony are too vague to demonstrate the cognizable prejudice
3 required to make out a due process violation. See 8 C.F.R.
4 § 1208.16(c)(2); Jian Xing Huang v. U.S. INS, 421 F.3d 125, 129
5 (2d Cir. 2005) (“In the absence of solid support in the record
6 . . . , [an applicant’s] fear is speculative at best.”).
7 Lora’s challenge to the denial of a subpoena fails for
8 essentially the same reason. Lora argues that the IJ was
9 required by regulation to subpoena the Bureau of Prisons and
10 require the Bureau to make Osorio available to testify. The IJ
11 is required to grant a subpoena, however, only if the testimony
12 is “essential.” 8 C.F.R. § 1003.35(b)(3). As discussed above,
13 Lora did not show that Osorio’s testimony was essential because
14 she provided neither an affidavit from Osorio nor detailed
15 information regarding the threats as to which he would testify.
16 Even assuming the IJ could have issued a subpoena to a federal
17 agency, therefore, Lora has not demonstrated that the IJ’s
18 decision was fundamentally unfair or that she suffered
19 cognizable prejudice.
20 II. Proportionality
21 Lora also argues that her removal violates due process
22 because it imposes a disproportionate punishment for her
5 1 criminal conviction. This argument is foreclosed by our recent
2 decision in Marin-Marin v. Sessions, 852 F.3d 192, 194 (2d Cir.
3 2017), in which we held that removal is not subject to due
4 process proportionality review. Although Marin-Marin dealt
5 with the removal of an alien whose presence in the United States
6 was unauthorized, its reasoning also controls here. See id.
7 (“[I]n general, when removal is predicated on a criminal act,
8 ‘the alien is not being punished for that act (criminal charges
9 may be available for that separate purpose) but is merely being
10 held to the terms under which [s]he was admitted.’” (quoting
11 Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 491
12 (1999)) (brackets added)).
13 For the foregoing reasons, the petition for review is
14 DENIED. As we have completed our review, Lora’s motion for a
15 stay of removal is DISMISSED as moot. Any pending request for
16 oral argument in this petition is DENIED in accordance with
17 Federal Rule of Appellate Procedure 34(a)(2), and Second
18 Circuit Local Rule 34.1(b).
19 FOR THE COURT: 20 Catherine O’Hagan Wolfe, Clerk