Opinion
12-4472 NAC
07-16-2014
KELLY ANN JEANETTE CHARLES, AKA KELLYANN J. CHARLES, AKA KELLY A. CHARLES, AKA KELLY-ANN CHARLES, Petitioner, v. ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL, Respondent.
FOR PETITIONER: Anna Marie Gallagher, Maggio-Kattar, P.C., Washington, D.C. FOR RESPONDENT: Stuart F. Delery, Assistant Attorney General; Cindy S. Ferrier, Assistant Director; Matt A. Crapo, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C.
BIA
A041 603 922
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 A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 16th day of July, two thousand fourteen. PRESENT:
DENNIS JACOBS,
PIERRE N. LEVAL,
DEBRA ANN LIVINGSTON,
Circuit Judges.
FOR PETITIONER:
Anna Marie Gallagher, Maggio-Kattar,
P.C., Washington, D.C.
FOR RESPONDENT:
Stuart F. Delery, Assistant Attorney
General; Cindy S. Ferrier, Assistant
Director; Matt A. Crapo, Trial
Attorney, Office of Immigration
Litigation, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals ("BIA") decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DISMISSED as moot.
Petitioner Kelly Ann Jeanette Charles, a native and citizen of Trinidad and Tobago, seeks review of an October 15, 2012 order of the BIA, which denied her motion for reconsideration and a continuance. In re Kelly Ann Jeanette Charles, No. A041 603 922 (B.I.A. Oct. 15, 2012). We assume the parties' familiarity with the underlying facts and procedural history in this case.
We review the BIA's denial of reconsideration and a continuance for abuse of discretion. See Jin Ming Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir. 2006); Sanusi v. Gonzales, 445 F.3d 193, 199 (2d Cir. 2006). Charles did not timely petition for review of the BIA's July 2012 decision, which found her ineligible for a waiver of inadmissibility under Immigration and Nationality Act ("INA") § 212(h) for having been convicted of an aggravated felony. Accordingly, her challenges to those findings are not properly before the Court. See Jin Ming Liu, 439 F.3d at 111 (noting that the Court is "'precluded from passing on the merits of the underlying [] proceedings'" in a petition for review from the denial of a motion to reconsider) (quoting Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005)); see also Stone v. INS, 514 U.S. 386, 405 (1995) (requiring separate timely petitions for review from final removal order and denial of a motion to reconsider or reopen).
Charles's challenge to the denial of a continuance is moot because she requested the continuance to await a decision in Chaidez v. United States, --- U.S. ---, 133 S. Ct. 1103 (2013), which has since been issued. "To qualify as a case fit for federal-court adjudication, 'an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed'." Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997) (quoting Preiser v. Newkirk, 422 U.S. 395, 401 (1975)). "[I]f an event occurs while a case is pending on appeal that makes it impossible for the court to grant 'any effectual relief whatever' to a prevailing party, the appeal must be dismissed." Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992) (quoting Mills v. Green, 159 U.S. 651, 653 (1895)). Charles argues that her petition is not moot because she continues to explore the possibility of post-conviction relief; but the only ground she urged for holding her case in abeyance was the decision in Chaidez.
For the foregoing reasons, the petition for review is DISMISSED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk