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    Erwin Cespedes v. Eric Holder, JR., 4th Cir. (2013)

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    This document is a summary of two petitions for review filed with the United States Court of Appeals for the Fourth Circuit regarding orders from the Board of Immigration Appeals (BIA) in the case of Erwin Ruben Cespedes, a native of Bolivia. The BIA found that Cespedes was removable for having been convicted of a controlled substance offense and that he was not eligible for cancellation of removal. The Court of Appeals denied both petitions for review, finding that the BIA did not err in determining that Cespedes' conviction was for a controlled substance offense that did not qualify for an exception, and that the immigration judge did not abuse his discretion in denying a continuance or in finding that Cespedes was in

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    Erwin Cespedes v. Eric Holder, JR., 4th Cir. (2013)

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    This document is a summary of two petitions for review filed with the United States Court of Appeals for the Fourth Circuit regarding orders from the Board of Immigration Appeals (BIA) in the case of Erwin Ruben Cespedes, a native of Bolivia. The BIA found that Cespedes was removable for having been convicted of a controlled substance offense and that he was not eligible for cancellation of removal. The Court of Appeals denied both petitions for review, finding that the BIA did not err in determining that Cespedes' conviction was for a controlled substance offense that did not qualify for an exception, and that the immigration judge did not abuse his discretion in denying a continuance or in finding that Cespedes was in

    Original Description:

    Filed: 2013-10-11 Precedential Status: Non-Precedential Docket: 13-1351

    Original Title

    Erwin Cespedes v. Eric Holder, Jr., 4th Cir. (2013)

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    This document is a summary of two petitions for review filed with the United States Court of Appeals for the Fourth Circuit regarding orders from the Board of Immigration Appeals (BIA) in the case of Erwin Ruben Cespedes, a native of Bolivia. The BIA found that Cespedes was removable for having been convicted of a controlled substance offense and that he was not eligible for cancellation of removal. The Court of Appeals denied both petitions for review, finding that the BIA did not err in determining that Cespedes' conviction was for a controlled substance offense that did not qualify for an exception, and that the immigration judge did not abuse his discretion in denying a continuance or in finding that Cespedes was in

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    13 views7 pages

    Erwin Cespedes v. Eric Holder, JR., 4th Cir. (2013)

    Uploaded by

    Scribd Government Docs
    This document is a summary of two petitions for review filed with the United States Court of Appeals for the Fourth Circuit regarding orders from the Board of Immigration Appeals (BIA) in the case of Erwin Ruben Cespedes, a native of Bolivia. The BIA found that Cespedes was removable for having been convicted of a controlled substance offense and that he was not eligible for cancellation of removal. The Court of Appeals denied both petitions for review, finding that the BIA did not err in determining that Cespedes' conviction was for a controlled substance offense that did not qualify for an exception, and that the immigration judge did not abuse his discretion in denying a continuance or in finding that Cespedes was in

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    of 7

    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.

    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.

    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 judges 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

    controlled

    substance,

    other

    than

    single

    offense

    involving possession for ones own use of 30 grams or less of


    marijuana, is removable.
    judges

    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 ones 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

    Chevron * standard.

    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

    BIAs

    interpretation

    construction of the statute.

    is

    based

    on

    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).

    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

    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

    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).
    5

    Matter of Sibrun,

    We review the denial of

    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

    judges] 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 judges 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

    Boards

    prior

    decision.

    See

    (2006); 8 C.F.R. 1003.2(b) (2013).

    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


    6

    these

    petitions,

    when

    the

    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

    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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