Opinion
No. 07-0501-ag.
December 2, 2008.
UPON DUE CONSIDERATION of this appeal from a judgment of the Board of Immigration Appeals it is ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED.
For Petitioner: JUDY S. RESNICK, Far Rockaway, N.Y.
For Respondent: VIRGINIA LUM, Office of Immigration Litigation, Civil Division (Richard M. Evans, Assistant Director, Office of Immigration Litigation, on the brief) for Gregory G. Katsas, Acting Assistant Attorney General, Civil Division.
Philip Anthony Moe petitions for review of the Board of Immigration Appeals' ("BIA") August 23, 1996 denial of his motion to remand, and its simultaneous dismissal of his appeal from an immigration judge ("IJ") decision denying Moe's request for a continuance and finding him deportable. Assuming arguendo that Moe was eligible to seek relief under Matter of Gabryelsky, 20 I. N. Dec. 750 (B.I.A. 1993), we find that he has not shown a reasonable possibility of success on his Section 212 motion, and therefore cannot show prejudice in the BIA's refusal to grant Moe's third request for a continuance.
We review the denial of a motion to reopen for abuse of discretion. Iavorski v. INS, 232 F.3d 124, 128 (2d Cir. 2000). "The BIA exceeds its allowable discretion if its decision (1) provides no rational explanation, (2) inexplicably departs from established policies, (3) is devoid of any reasoning, or (4) contains only summary or conclusory statements. The BIA also exceeds its allowable discretion when it fails to consider the facts of record relevant to the motion." Melnitsenko v. Mukasey, 517 F.3d 42, 50 (2d Cir. 2008) (internal quotations and citations omitted). We also review the denial of a continuance only for abuse of discretion. See Morgan v. Gonzales, 445 F.3d 549, 551 (2d Cir. 2006).
In order to avoid deportability, Moe must escape the consequences of his prior convictions: one for a weapons offense and two for drug offenses. The former can only be avoided through a Section 212(c) waiver; the latter only through a Section 245 adjustment of status. To deal with this Catch 22, the BIA permits petitioners concurrently to seek (i) § 212(c) relief from deportation for drug convictions, and (ii) § 245(a) adjustment of status for weapons convictions. Under Gabryelsky, "the fact (i) that § 212(c) relief from deportation was unavailable because of the weapons conviction, and (ii) that § 245(a) adjustment of status was unavailable because of the drug conviction, would both be remedied by the legal fiction that § 212(c) relief and § 245(a) adjustment of status take place at exactly the same time, thereby negating each ineligibility as an obstacle to the other proceeding." Drax v. Reno, 338 F.3d 98, 103 (2d Cir. 2003). We discussed this procedure most thoroughly in Drax, in which the petitioner sought review after the IJ erroneously informed him that no such relief was available, and (as here) refused to grant him a continuance to pursue it. We remanded in that case because the petitioner "had a reasonable likelihood of success under the Gabryelsky process and . . . in the circumstances here presented, the Immigration Judge erred by failing to recognize the availability of such relief." Id. at 100.
Moe, too, must show a reasonable possibility of success under Gabryelsky"i.e., both Section 212 relief and Section 245 adjustment of status — in order to show that the BIA erred in denying his motion for continuance. See United States v. Copeland, 376 F.3d 61, 73 (2d Cir. 2004) ("[P]rejudice is shown where there is a reasonable probability that, but for the [BIA's] unprofessional errors, the alien would have been granted Section 212(c) relief."). In determining whether such Section 212 waiver relief might be available, a reviewing court must play "the role of prognosticator," Edwards v. INS, 393 F.3d 299, 311 (2d Cir. 2004), "reconstruct[ing] events as they existed at the time of the disputed deportation proceeding, without considering future occurrences." United States v. Scott, 394 F.3d 111, 119 (2d Cir. 2005). "The court must first obtain all of the facts relevant to the particular alien and then apply standards established under Section 212(c) to those facts, taking into account actual cases in which similarly situated aliens have been granted or denied discretionary relief." Copeland, 376 F.3d at 74.
We conclude that Moe cannot show a reasonable possibility of success on his Section 212 waiver, and therefore cannot prevail in the present appeal. We have unusually useful guidance on this point, because the U.S. District Court for the Eastern District of New York (Dearie, J.) recently evaluated Moe's prospects for Section 212 relief and found them wanting. United States v. Moe, No. 02 CR 888, 2008 WL 1850650 (E.D.N.Y. Apr. 24, 2008). On April 24, 2008, as part of a separate criminal proceeding involving Moe, the court entered an opinion reaffirming its earlier decision that Moe had no reasonable possibility of Section 212 relief. The district court conducted an evidentiary hearing during which it heard testimony from Moe (who participated by phone from Guyana) and many of his family members. "[T]he hearing as a whole — including important testimony from defendant himself — served only to reinforce this Court's original view of how defendant would have fared in an actual 212(c) proceeding." Id. at *1.
Because Moe cannot show a reasonable possibility of success on his Section 212 motion, he cannot show a reasonable possibility of success in his Gabryelsky process, and the IJ therefore did not commit reversible error in denying his third motion for continuance. We have considered all of Moe's remaining arguments and found them to be without merit. Accordingly, we DENY the petition for review.