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Keywords

jurisdictionmotionwillregulationdue processnaturalizationpiracy

jurisdictionmotionwillfelonydue processnaturalizationpiracy

Related Cases

Gordon v. Ashcroft

Facts

Gordon, a native and citizen of Jamaica, was admitted to the United States in 1981. He was convicted in 1998 of conspiracy to possess with intent to deliver cocaine. In 2002, the Immigration and Naturalization Service placed him in removal proceedings, charging him with removal under the Immigration and Nationality Act as an aggravated felon. Gordon conceded his removability but requested continuances to pursue post-conviction relief, which were denied by the IJ.

Gordon is a native and citizen of Jamaica who was admitted to the United States on July 4, 1981. On May 19, 1998, Gordon was convicted in the United States District Court for the Southern District of Florida of conspiracy to possess with intent to deliver cocaine, in violation of 21 U.S.C. 846 . On February 5, 2002, the Immigration and Naturalization Service placed Gordon into removal proceedings with a Notice to Appear charging him with removal under Immigration and Nationality Act (INA) 237(a)(2)(A)(iii) and (B)(i), 8 U.S.C. 1227(a)(2)(A)(iii) and (B)(i) , as an alien convicted of an aggravated felony (illicit trafficking in a controlled substance) and a controlled substance offense.

Issue

Did the Immigration Judge abuse his discretion in denying Gordon's request for a continuance, and did the BIA's affirmance without opinion violate his due process rights?

Rule

The decision to grant or deny a motion for a continuance is within the discretion of the Immigration Judge, and such a decision will not be overturned unless there is a clear abuse of discretion. Additionally, the streamlining regulations allowing for affirmance without opinion do not violate the Due Process Clause.

The decision to grant or deny a motion for a continuance is in the discretion of the IJ. See Rios-Berrios v. INS , 776 F.2d 859, 862 (9th Cir. 1985) . A decision to deny a continuance will not be overturned except on a showing of clear abuse. Id. Moreover, an alien must show that he or she has suffered prejudice resulting from the abuse of discretion.

Analysis

The court found that the IJ did not abuse his discretion in denying Gordon's second request for a continuance, as Gordon had not shown any progress in seeking post-conviction relief and had conceded his removability. The court also noted that the BIA's affirmance without opinion was permissible under the regulations and did not infringe upon Gordon's due process rights.

The IJ did not abuse his discretion in denying Gordon's second continuance request, and in any event Gordon has not shown that he has suffered prejudice. The IJ granted Gordon's first request for a continuance and gave him three months so that he could pursue post-conviction relief. At the conclusion of the three months, Gordon appeared before the IJ and stated that he had not been able to secure any relief from his drug conviction.

Conclusion

The court dismissed the petition for review, concluding that it lacked jurisdiction to review the removal order due to Gordon's status as an aggravated felon.

Because Gordon is an alien who is removable because he committed an aggravated felony and controlled substance offense under INA 237(a)(2)(A)(iii) and (B)(i), 8 U.S.C. 1227(a)(2)(A)(iii) and (B)(i) , and because he has not raised any substantial constitutional challenge over which we might have jurisdiction, INA 242(a)(2)(C), 8 U.S.C. 1252(a)(2)(C) , bars us from exercising jurisdiction over his petition for review.

Who won?

The government prevailed in the case because the court found that the IJ acted within his discretion and that the BIA's actions were lawful.

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