Llanery SOTO, Petitioner, v. Eric HOLDER, Jr., United States Attorney General, Respondent.
No. 13-1520.
United States Court of Appeals, First Circuit.
Dec. 3, 2013.
736 F.3d 1009
Andrew Olivera, Trial Attorney, Office of Immigration Litigation, Civil Division, Department of Justice, Stuart F. Delery,
Before LYNCH, Chief Judge, STAHL and HOWARD, Circuit Judges.
STAHL, Circuit Judge.
Petitioner Llanery Soto seeks review an order of the Board of Immigration Appeals (“BIA“) affirming the Immigration Court‘s decision to dismiss her application for cancellation of removal. We conclude that the BIA‘s correct application of the “stop-time” rule precludes the relief that Soto seeks. Therefore, we deny Soto‘s petition for review.
I. Background
Soto is a native and citizen of the Dominican Republic who entered the United States on September 16, 1997, without admission or parole. On November 14, 2005, the United States Immigration and Naturalization Service (“INS“) served Soto with a Notice to Appear (“NTA“) charging her as removable pursuant to the Immigration and Nationality Act (“INA“), subsections
On November 10, 2009, Soto filed a motion to reopen in order to submit an application for cancellation of removal. In an accompanying affidavit, Soto acknowledged receiving the NTA in November 2005, although she later denied it in her pleading dated December 17, 2009. In the same pleading, Soto conceded that she was removable under
The Immigration Court issued a decision on December 17, 2010, denying the motion for continuance and holding that Soto had abandoned the application for cancellation. The court found that Soto had not offered any satisfactory reason for requesting additional time beyond the November 24 deadline to file her application for cancellation. Additionally, the court found that Soto was statutorily ineligible for cancellation of removal in any case, because she could not show ten years of continuous presence in the United States, as required by
The BIA affirmed the Immigration Court‘s ruling on February 23, 2012. This court vacated that decision and remanded to the BIA in response to an unopposed motion from the government seeking clarification of the date on which Soto received service of the NTA. On remand, the BIA confirmed that Soto was served with the NTA on November 14, 2005, and again upheld the Immigration Court‘s decision. The present appeal followed.
II. Analysis
Here, Soto argues that the Immigration Court erred as a matter of law in finding that she was statutorily ineligible for cancellation of removal and abused its discretion in denying her motion for continuance.
“We review the BIA‘s legal conclusions de novo, with appropriate deference to the agency‘s interpretation of the underlying statute in accordance with administrative law principles.” Walker v. Holder, 589 F.3d 12, 18 (1st Cir.2009). “This includes a de novo review of due process claims.” Toribio-Chavez v. Holder, 611 F.3d 57, 62 (1st Cir.2010). “We review the agency‘s factual findings, including credibility determinations, under the substantial evidence standard, and may overturn those findings only if ‘any reasonable adjudicator would be compelled to conclude to the contrary.‘” Lin v. Gonzales, 503 F.3d 4, 7 (1st Cir.2007) (quoting
A. Soto‘s Application for Cancellation of Removal
The Attorney General has the discretion to cancel the removal of nonpermanent resident aliens who meet certain specified criteria, including physical presence in the United States “for a continuous period of not less than 10 years immediately preceding the date of such application” for cancellation of removal.
The BIA found as a factual matter that Soto entered the United States on September 16, 1997, and received service of the NTA on November 14, 2005, prior to the ten-year mark. Although Soto stated otherwise in her pleadings, in a sworn affidavit she testified that she received service of the NTA at that time. In light of this evidence, we conclude that the BIA‘s factual determination was not erroneous. Therefore, under the plain terms of the statute, Soto‘s period of continuous presence in the United States for the purposes of her application is less than ten years, and she is not eligible for cancellation of removal under the stop-time rule.
Soto raises two arguments against this conclusion. First, she claims that her ten years of continuous presence accrued during the two-year period between the service of the NTA and its filing with the Immigration Court. Second (perhaps alternatively), she argues that “the ten (10) year period provided, by the plain statutory language, encompasses that period from the date of entry through the date of application, not the date of the service of the NTA.” (emphasis in original). Neither argument has any legal basis. The statute unambiguously cuts off the term of continuous presence for the purposes of
The BIA did not address separately whether the Immigration Court abused its discretion by denying Soto‘s motion for an extension of time to file her application. Nevertheless, we conclude that the denial was not an abuse of discretion. Having correctly determined that Soto was statutorily ineligible for cancellation of removal, the Immigration Court had no reason to allow Soto more time to file a futile application, particularly given Soto‘s failure to show cause. Thus, Soto‘s appeal fails on that ground as well.
B. Due Process Claim
In her appellate brief, Soto mentions due process without clearly articulating an argument on that issue. To the extent that we can discern a due process claim, Soto appears to be arguing that the Immigration Court denied her the opportunity to be heard and present evidence by denying her motion for continuance and summarily finding her application for cancellation to be abandoned. This is not a colorable due process claim.
“[T]his court has recognized that there is a due process violation if the proceeding is so fundamentally unfair that the alien was prevented from reasonably presenting [her] case.” Bernal-Vallejo v. INS, 195 F.3d 56, 63 (1st Cir.1999). But we have also held that a denial of a continuance cannot be a due process violation where there was no abuse of discretion. See Alsamhouri v. Gonzales, 484 F.3d 117, 124 (1st Cir.2007) (“[T]he IJ did not abuse his discretion in denying the continuance; hence, there is no possible claim that the denial rendered the proceeding fundamentally unfair.“) (internal quotation marks omitted). For the reasons explained above, the Immigration Court did not abuse its discretion by denying the motion for continuance. Therefore, Soto‘s due process claim necessarily fails.
III. Conclusion
For the foregoing reasons, we deny Soto‘s petition for review.