Erwin Whitter v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-12761
Non-Argument Calendar
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Agency No. A077-361-246
ERWIN WHITTER,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(September 28, 2021)
Before WILSON, ROSENBAUM, and NEWSOM, Circuit Judges.
PER CURIAM:
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Erwin Whitter petitions for review of a decision of the Board of Immigration
Appeals (BIA). In a final order, the BIA affirmed the Immigration Judge’s (IJ)
denial of Whitter’s application for asylum, withholding of removal, and relief
under the United Nations Convention Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment (CAT). The BIA also affirmed the denial
of Whitter’s motion for a continuance while he pursued collateral relief for a
criminal conviction. Whitter seeks review only of the decision to affirm the denial
of his motion for a continuance. He argues that the IJ and the BIA erred by
misapplying the legal standard for granting a continuance. After careful review,
we deny the petition.
Whitter is a native and citizen of Bermuda who entered the United States in
December 2000. He became a lawful permanent resident in 2002. In June 2014,
he was indicted in South Carolina state court for attempted murder and possession
of a weapon during the commission of a violent crime. Whitter pleaded guilty to
assault and battery of a high and aggravated nature and possessing a knife during
the commission of a violent crime. The judge accepted his plea and sentenced him
to 20 years of imprisonment as to the assault and battery conviction and 5 years as
to the possession of a knife conviction. The sentences were to run concurrently.
In June 2019, as Whitter served his sentence, the Department of Homeland
Security (DHS) commenced removal proceedings against him by filing a Notice to
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Appear. DHS alleged that Whitter had been convicted of assault and battery of a
high and aggravated nature and charged him with removability under INA §
237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii). It noted that he had been
convicted of an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. §
1101(a)(43)(F), which was a crime of violence under 18 U.S.C. § 16(a), for which
the term of imprisonment was at least one year.
Whitter appeared pro se before the Atlanta Immigration Court in June 2019,
where he indicated that he wanted to seek representation for the proceedings. The
IJ granted a continuance and provided a list of attorneys and organizations. Over
the next several months, the IJ granted Whitter three more continuances. In
October 2019, Whitter informed the IJ that he was not able to secure counsel and
decided to proceed pro se.
When proceedings before the IJ commenced, Whitter admitted that he was
convicted of the offense of assault and battery of a high and aggravated nature in
South Carolina. The IJ then sustained the charge of removability for an aggravated
felony. After Whitter expressed a fear of returning to Bermuda, the IJ gave him an
application for asylum, withholding of removal, and CAT protection. The IJ also
continued the case to provide Whitter additional time to apply for relief from
removal. Whitter filed his application for asylum, withholding of removal and
CAT relief.
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At the merits hearing in December 2019, Whitter again requested a
continuance, stating that he was waiting for a response from a South Carolina state
court. The IJ stated, in relevant part, that seeking a continuance while pursuing
collateral relief on a criminal conviction is “something that’s done quite often,” but
that “the appellate court tells Immigration Judges that . . . [there is no] . . . basis to
continue a removal proceeding” in that circumstance. The IJ added that “maybe if
the [state] court . . . takes some action . . . , you may be able to ask that the
deportation case be reopened, but I cannot continue today’s hearing for that
purpose that you’ve told me about.”
Regarding his application for relief, Whitter testified that he feared gang
violence in Bermuda. However, in an oral decision, the IJ denied Whitter’s
applications for asylum, withholding of removal, and CAT protection, and ordered
his removal to Bermuda. Whitter appealed the IJ’s decision to the BIA. He
asserted, in part, that the IJ should have granted his request for a continuance so
that he could obtain documents from his country for use in a collateral attack on his
criminal conviction. The BIA affirmed the IJ’s decision and dismissed Whitter’s
appeal. With regard to Whitter’s argument that the proceedings should have been
adjourned while he pursued post-conviction relief for his 2014 criminal conviction,
the BIA stated that “a pending collateral attack on a criminal conviction is too
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tentative and speculative to support a continuance of removal proceedings.”
Further, the BIA noted:
[T]he respondent has not provided documentary evidence to indicate
that his conviction has been vacated or materially modified in any way
by the appropriate court. The respondent’s mere speculation that his
conviction may be invalid does not change the finality of the conviction
for immigration purposes, unless and until it has been overturned by a
criminal court.
Whitter then filed a petition for review.1
We review the BIA’s decision as the final judgment, unless the BIA
expressly adopted the IJ’s decision. Gonzalez v. U.S. Att’y Gen., 820 F.3d 399,
403 (11th Cir. 2016) (per curiam). Here, the BIA agreed with the IJ’s reasoning
for denying the motion for continuance, so we review the decisions of both to the
extent of the agreement. See id.
Under the criminal alien bar, our jurisdiction to review a petition is limited
when a noncitizen is ordered removed for having been convicted of an aggravated
felony. See INA § 242(a)(2)(C); 8 U.S.C. § 1252(a)(2)(C). We retain jurisdiction,
however, to review constitutional claims and questions of law that have been
exhausted. See INA § 242(a)(2)(D); 8 U.S.C. § 1252(a)(2)(D). Questions of law
include questions about whether the BIA applied the correct legal standard. See
Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1067 (2020). Whitter argues that the
1 Whitter filed his petition with the Ninth Circuit Court of Appeals. The petition was then
transferred to our court.
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BIA and the IJ failed to apply the correct legal standard. He contends that the IJ
and the BIA are bound by decisions of the AG, and that they misapplied the AG’s
guidance—which is binding on them—by creating a bright-line rule that a
continuance can never be granted while a respondent seeks collateral relief.
The correct legal standard, the parties agree, is set forth in 8 C.F.R. §
1003.29 and further explained in Matter of L-A-B-R, 27 I&N Dec. 405 (A.G.
2018). An immigration judge may grant a motion for a continuance “for good
cause shown.” 8 C.F.R. § 1003.29. And in Matter of L-A-B-R-, the Attorney
General (AG) explained that immigration judges must apply “a multifactor
analysis,” focusing “on the likelihood that the collateral relief will be granted and
will materially affect the outcome of the removal proceedings.” 27 I&N Dec. at
406, 412. “[C]ontinuances should not be granted when a respondent’s collateral
pursuits are merely speculative.” Id. at 414.
More specifically, the AG also addressed collateral attacks on criminal
convictions, as opposed to other forms of collateral relief such as visa petitions.
With regard to attacks on criminal convictions, the AG cited decisions from federal
appellate courts stating that a respondent’s “pending collateral attack on a criminal
conviction is too ‘tentative’ and ‘speculative’ to support a continuance of removal
proceedings.” Id. at 417 (citing Palma-Martinez v. Lynch, 785 F.3d 1147, 1150
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(7th Cir. 2015); Jimenez-Guzman v. Holder, 642 F.3d 1294, 1297 (10th Cir.
2011)).
Because Whitter is challenging whether the IJ and the BIA applied the
correct legal standard—a question of law—we have jurisdiction to review his
petition. See Guerrero-Lasprilla, 140 S. Ct. at 1067. As to the merits of Whitter’s
argument, he correctly asserts that the BIA is bound by decisions of the AG. See 8
C.F.R. § 1003.1(g)(1). However, we disagree with Whitter that the IJ and BIA
applied a rule that was inconsistent with the AG’s decision. In Matter of L-A-B-R-,
the AG established that a pending collateral attack on a criminal conviction is
simply too speculative to support a continuance, which is precisely why the BIA
affirmed the IJ’s decision. 27 I. & N. Dec. at 417–18. Accordingly, we reject
Whitter’s argument that the BIA and the IJ applied the wrong law in finding that
Whitter failed to establish good cause for a continuance, and thus we deny the
petition.
PETITION DENIED.
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