19-482 Wilson v. Garland BIA Ruehle, IJ A075 913 677 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.

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 28th day of July, two thousand twenty-one.

PRESENT: JON O. NEWMAN, ROSEMARY S. POOLER, GERARD E. LYNCH, Circuit Judges. _____________________________________

WENDELL K. WILSON, Petitioner,

v. 19-482 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Robert F. Graziano, Buffalo, NY.

FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; Claire L. Workman, Senior Litigation Counsel; Rachel L. Browning, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

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 DENIED.

Petitioner Wendell K. Wilson, a native and citizen of

Grenada, seeks review of a January 28, 2019 decision of the

BIA affirming an August 17, 2018 decision of an Immigration

Judge (“IJ”). In re Wendell K. Wilson, No. A 075 913 677

(B.I.A. Jan. 28, 2019), aff’g No. A 075 913 677 (Immig. Ct.

Batavia Aug. 17, 2018). We assume the parties’ familiarity

with the underlying facts and procedural history.

We have considered both the BIA’s and IJ’s decision “for

the sake of completeness.” Wangchuck v. Dep’t of Homeland

Sec.,

(2d Cir. 2006). We review the

agency’s factual findings for substantial evidence and its

legal conclusions, including constitutional claims, de novo.

See

(b)(4)(B); Yanqin Weng v. Holder,

(2d Cir. 2009); Pierre v. Holder,

(2d Cir. 2009).

The agency denied cancellation of removal and Wilson’s 2 motions to subpoena a witness in support of that relief and

for a continuance to pursue an asylum application. Wilson

does not challenge the agency’s discretionary denial of

cancellation of removal, but he argues that the denial of a

subpoena and a continuance deprived him of due process. 1 To

succeed on a due process claim, Wilson must show that he was

denied a “full and fair opportunity” to present his claims or

that he was otherwise deprived of “fundamental fairness,”

Burger v. Gonzales,

(2d Cir. 2007) (internal

quotation marks omitted), and that the deprivation resulted

in “cognizable prejudice,” Garcia-Villeda v. Mukasey,

(2d Cir. 2008) (internal quotation marks

omitted). We find no due process violation.

The agency did not abuse its discretion or deprive Wilson

of due process by denying a continuance for him to pursue

asylum. See Sanusi v. Gonzales,

(2d Cir.

2006) (reviewing denial of continuance for abuse of

discretion). “The immigration judge may grant a motion for

1Our jurisdiction to review the denial of discretionary relief, like cancellation of removal, is limited to constitutional claims and questions of law.

(a)(2)(B), (D). We have jurisdiction here because Wilson’s arguments implicate due process. 3 continuance for good cause shown.”

. IJs

have “broad discretion” and “are accorded wide latitude in

calendar management.” Morgan v. Gonzales,

(2d Cir. 2006). To state a due process claim or challenge a

continuance, the applicant for relief must establish, among

other things, that the denial of the continuance caused

prejudice and “materially affected the outcome of his case.”

Matter of Sibrun,

(B.I.A. 1983); see

also Garcia-Villeda,

.

Wilson had opportunities to alert the IJ to his asylum

claim, but his first attorney indicated there were no

additional applications, Wilson did not mention asylum to the

IJ after that attorney withdrew despite having possession of

the application for relief and alerting the IJ to other

issues, and his second counsel did not raise the asylum claim

until the merits hearing. Moreover, Wilson has not shown

prejudice because he has not subsequently presented any

evidence to support the basis for his asylum claim. See

Matter of Sibrun, 18 I. & N. Dec. at 356–57 (requiring movant

to “specifically articulate the particular facts involved or

evidence which he would have presented”).

4 As to Wilson’s motion for a subpoena, an IJ “may issue a

subpoena upon his or her own volition or upon application of

the Service or the alien.”

(b)(1). “A

party applying for a subpoena shall be required, as a

condition precedent to its issuance, to state in writing or

at the proceeding, what he or she expects to prove by such

witnesses or documentary evidence, and to show affirmatively

that he or she has made diligent effort, without success, to

produce the same.”

§ 1003.35(b)(2). An IJ is required

to grant a subpoena only if the “evidence is essential.” Id.

§ 1003.35(b)(3).

The IJ did not err in declining to subpoena Wilson’s

son’s testimony. Wilson has not demonstrated that his son’s

testimony was essential or that he made a good faith, diligent

effort to obtain his son’s testimony absent a subpoena.

Wilson has not identified what information his son would have

provided that was not already in his son’s written statement.

The IJ considered the potential value of the testimony, and

found it lacking given the lack of documentation to

corroborate the allegations regarding Wilson’s son’s mother.

And Wilson did not show diligence as he made his motion orally

5 on the day of the hearing and provided only his attorney’s

oral statement that his son’s mother had not returned an

unidentified number of calls or text messages.

Finally, Wilson has not established prejudice because

his son’s testimony would have addressed hardship, but the IJ

alternatively denied cancellation of removal as a matter of

discretion. “[C]ancellation of removal is a two-step

process. First, an alien must prove eligibility by showing

that he meets the statutory eligibility requirements. Second,

assuming an alien satisfies the statutory requirements, the

Attorney General in his discretion decides whether to grant

or deny relief.” Mendez v. Holder,

, 319–20 (2d

Cir. 2009) (internal quotation marks omitted). The IJ

determined that Wilson did not merit a favorable exercise of

discretion because of his criminal conviction, history of

selling drugs, failure to file income taxes for several years,

and lack of evidence of financial support for his son.

Accordingly, Wilson cannot show that his son’s testimony

regarding harship, which went to eligibility for

cancellation, would have affected the outcome of his

proceedings. 8 U.S.C. § 1229b(b); Garcia-Villeda,

6 at 149 (requiring “cognizable prejudice” to state due process

claim).

For the foregoing reasons, the petition for review is

DENIED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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