Cui v. Mukasey ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
QI CUI, 
Petitioner, No. 05-72185
v.
 Agency No.
A75-726-338
MICHAEL B. MUKASEY, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
February 8, 2008—Pasadena, California
Filed August 19, 2008
Before: Harry Pregerson, Glenn L. Archer, Jr.,* and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Pregerson
*The Honorable Glenn L. Archer, Jr., Senior United States Circuit
Judge for the Federal Circuit, sitting by designation.
11043
CUI v. MUKASEY 11045
COUNSEL
William Kiang, Law Offices of Kiang & Kiang, San Gabriel,
California, for the petitioner.
11046 CUI v. MUKASEY
Peter D. Keisler, Assistant Attorney General, Civil Division;
Richard M. Evans, Assistant Director; Allen W. Hausman,
Senior Litigation Counsel, Office of Immigration Litigation,
Civil Division, Washington, DC, for the respondent.
OPINION
PREGERSON, Circuit Judge:
Qi Cui (“Cui”), a native and citizen of China, petitions for
review of a final order by the Board of Immigration Appeals
(“BIA”) affirming Immigration Judge (“IJ”) Thomas Y.K.
Fong’s ruling that pretermitted Cui’s application for withhold-
ing of removal and relief under the Convention Against Tor-
ture (“CAT”). We must decide whether the IJ abused his
discretion in refusing to grant Cui’s motion for a continuance
so that she could resubmit fingerprints for a background
security check. We have jurisdiction under 8 U.S.C. § 1252,
and we grant relief and remand.
STANDARD OF REVIEW
We review an IJ’s decision to deny a request for continu-
ance for abuse of discretion. See Nakamoto v. Ashcroft, 363
F.3d 874, 883 n.6 (9th Cir. 2004); see also Baires v. INS, 856
F.2d 89, 91 (9th Cir. 1988). We review questions of law de
novo. Baballah v. Ashcroft, 367 F.3d 1067, 1073 (9th Cir.
2004). We review factual findings for substantial evidence.
Abebe v. Gonzales, 432 F.3d 1037, 1039 (9th Cir. 2005).
FACTUAL AND PROCEDURAL BACKGROUND
Qi Cui is a thirty-eight-year-old native and citizen of China.
She was admitted to the United States on April 15, 1996 as
a non-immigrant business visitor. Cui testified that she was
sent to the United States by Glory International to develop its
CUI v. MUKASEY 11047
business as its financial manager. Cui began studying at Rose-
mead College and changed to non-immigrant student status.
She testified that she later attended Pasadena City College to
study nursing. The Department of Homeland Security
(“DHS”) (formerly INS) authorized Cui to remain in the
United States until December 19, 1998. She remained in the
United States beyond that date without authorization from
DHS.
On October 2, 2000, Cui applied for asylum. She claimed
that she suffered a coerced abortion in China as a result of the
national one-child policy. To support her asylum application,
she submitted her fingerprints for analysis. There is no evi-
dence that the fingerprint analysis revealed any criminal
record or other problems with Cui’s eligibility for asylum.
Her case was then referred to the immigration court.
Removal proceedings were commenced against Cui on
December 12, 2000, with the filing of a Notice to Appear that
alleged that Cui had remained in the United States beyond
December 19, 1998 without authorization.
On January 23, 2001, Cui and her counsel appeared for the
master calendar hearing. But, at the government’s request, the
IJ rescheduled the hearing for March 8, 2001 because the gov-
ernment requested a continuance to consider dismissing the
charges against Cui. On March 8, 2001, the IJ granted another
continuance because, “just prior to going on the record,” the
government had decided to amend the charges against Cui.
On April 3, 2001, Cui and her counsel appeared and
responded to the amended allegations. The IJ again
rescheduled the hearing on removability “to give both sides
an opportunity to review the materials and documents offered
in this case.” Because Cui’s counsel had a “busy calendar” on
June 4, 2001, the IJ reset the hearing for August 6, 2002.
On August 6, 2002, Cui contested her removability. She
explained that she had been unable to complete the require-
11048 CUI v. MUKASEY
ments for her program before her student stay expired. She
further explained that her college had failed to submit a Form
I-538, requesting that her student immigrant status be
extended to enable her to complete her nursing program.
When the IJ expressed interest in the testimony of a certain
witness, Cui’s counsel asked for a short continuance so that
the witness could be subpoenaed. The IJ granted the request.
The matter was reset for August 19 and then rescheduled for
September 18 because the witness was unavailable on the
August 19 date.
On September 18, 2002, following the hearing on the
removability issue, Cui’s counsel conceded that Cui was
removable. Cui withdrew her application for asylum but indi-
cated she would still pursue withholding of removal and CAT
relief. The IJ asked, “when was the last time [Cui] did it [i.e.,
submitted her fingerprints]?” Cui’s counsel explained that Cui
had completed the required fingerprinting but that the finger-
prints were submitted “more than one year ago.” The IJ then
told Cui’s counsel that “it would have to be done . . . a mini-
mum of 60 days before the hearing, not more than 120 days.”
The IJ did not confirm that Cui, who had requested a Manda-
rin interpreter, understood those directions. Nor did the IJ
inform Cui of the consequences of failing to submit a new set
of fingerprints in advance of the merits hearing.
On February 5, 2003, both Cui and her counsel appeared
for the merits hearing, but a priority case took precedence.
The IJ explained, “the court has simply run out of time.” The
IJ rescheduled the merits hearing for June 20, 2003 — his
“first available date.” The IJ did not inquire about the status
of Cui’s fingerprints, nor did he warn Cui of the consequences
of failing to resubmit fingerprints before the rescheduled mer-
its hearing.
On June 20, 2003, Cui’s counsel advised the IJ that Cui had
not yet resubmitted her fingerprints. Cui’s counsel explained,
“Your Honor, I have no good excuse for [failing to submit
CUI v. MUKASEY 11049
updated fingerprints]. I, I believe we just overlooked it. We
forgot about it. I’m sorry.” Cui’s counsel requested a short
continuance to update the fingerprints before the IJ held a
merits hearing. Alternatively, Cui’s counsel requested that the
IJ proceed with the merits hearing as planned and grant a con-
tinuance for Cui to resubmit fingerprints if relief otherwise
was warranted.
The IJ denied Cui’s motion for a continuance to enable her
to resubmit fingerprints: “[T]his case has been going on for a
period of time . . . . I don’t see good cause again for . . . pro-
ceeding when the record is quite clear that I gave you and
your client opportunity to present the claim . . . .” Because of
this ruling, the IJ pretermitted, i.e., cut short, Cui’s applica-
tions for relief without hearing any testimony or considering
any evidence. The evidence included a medical record that
corroborated Cui’s claim that she suffered a forced abortion
while in China.
Cui appealed to the BIA. The BIA affirmed the IJ’s preter-
mission of Cui’s applications for relief, finding that Cui failed
to show good cause for her failure to update her fingerprints
prior to the latest rescheduled merits hearing. The BIA also
denied Cui’s motion to reopen and reconsider its previous
decision.
DISCUSSION
For almost all types of relief from removal, a fingerprint
check is required to establish that the applicant has not been
convicted of particular classes of crimes, and that she is not
otherwise inadmissible or ineligible. The results of a finger-
print check expire fifteen months after the date they are issued
by DHS. DHS may require that the applicant resubmit her fin-
gerprints so that DHS can update the security checks. 70 Fed.
Reg. 4743, 4744 (Jan. 31, 2005). Because Cui submitted her
fingerprints more than two years before her rescheduled mer-
11050 CUI v. MUKASEY
its hearing, Cui was required to resubmit her fingerprints for
an updated security check before she could be granted relief.
We must decide whether the IJ abused his discretion in
denying Cui’s motion for a continuance so that she could
resubmit her fingerprints. We hold that, in the circumstances
of this case, the IJ’s denial of Cui’s request for a continuance
constituted an abuse of discretion. Accordingly, we grant
Cui’s petition and remand for the IJ to grant Cui the opportu-
nity to submit new fingerprints in advance of her merits hear-
ing.
[1] Under 8 C.F.R. § 1003.29, an IJ “may grant a motion
for continuance for good cause shown.” In the context of
immigration proceedings, the decision to grant or deny con-
tinuances is in the sound discretion of the trial judge. See
Nakamoto, 363 F.3d at 883 n.6 (9th Cir. 2004); see also
Baires, 856 F.2d at 91. But the IJ’s discretion is limited. In
particular, we have cautioned that ‘a myopic insistence upon
expeditiousness in the face of a justifiable request for delay’
can render the immigrant’s statutory rights merely ‘an empty
formality.’ ” Baires, 856 F.2d at 91 (quoting Ungar v. Sara-
fite, 376 U.S. 575, 589 (1964)). “The question whether denial
of a continuance in an immigration proceeding constitutes an
abuse of discretion cannot be decided through the application
of bright-line rules; it must be resolved on a case by case
basis.” Id.
[2] When evaluating an IJ’s denial of a motion for continu-
ance we consider a number of factors — including, for exam-
ple, (1) the importance of the evidence, (2) the
unreasonableness of the immigrant’s conduct, (3) the inconve-
nience to the court, and (4) the number of continuances previ-
ously granted. See Bairnes, 856 F.2d at 92-93; cf. United
States v. Flynt, 756 F.2d 1352, 1358-59 (listing factors appel-
late court considers when reviewing district court’s denial of
request for continuance), amended, 764 F.2d 675 (9th Cir.
1985).
CUI v. MUKASEY 11051
[3] We start by considering the evidence that was excluded
as a result of the IJ’s denial of Cui’s motion for a continuance.
In this case, Cui’s ability to submit new fingerprints for analy-
sis was vital to the success of her petitions. Without an
updated security check, Cui could not be granted relief. Thus,
when the IJ denied her request for a continuance to resubmit
her fingerprints, he effectively pretermitted any hope Cui had
of obtaining relief. Her case was over. The vital importance
of the excluded fingerprint evidence counsels in favor of
granting a continuance.
We also consider whether the need for a continuance
resulted from the immigrant’s unreasonable conduct. See
Bairnes, 856 F.2d at 92-93; see also 8 C.F.R. § 1208.10
(requiring the applicant to show “good cause”). Here, Cui
admitted that she failed to comply with the fingerprint
requirement. We conclude, however, that Cui’s failure to
comply with the fingerprint requirement was not unreason-
able, as discussed below, because there were legal uncertain-
ties regarding the fingerprint requirement and because Cui did
not receive adequate notice of the requirement.
[4] At the time of Cui’s case, in June 2003, the law govern-
ing the fingerprint requirement was unclear and uncertain.1 In
January 2005, the Executive Office for Immigration Review
(“EOIR”) announced proposed changes to the existing regula-
tions in order to clarify certain areas of the law that governed
fingerprinting of immigrants. The EOIR acknowledged that 8
C.F.R. § 1003.29 — which provides that “[t]he Immigration
Judge may grant a motion for continuance for good cause
shown” — “leaves numerous questions unanswered in the
complicated area of criminal history checks and national
security investigations.” 70 Fed. Reg. at 4744. The EOIR
admitted, “[t]he current regulations are also unclear as to the
1
There were no published Ninth Circuit decisions holding that preter-
mission of an immigrant’s applications is appropriate where there is a fail-
ure to comply with the fingerprint requirement.
11052 CUI v. MUKASEY
scope of an immigration judge’s authority to act to grant relief
in situations where a background investigation is ongoing.”
Id. In practice, IJs did not always require that fingerprint
checks be completed in advance of the merits hearing. In fact,
sometimes relief was granted before the fingerprint checks
were completed. See 70 Fed. Reg. at 4744; see, e.g., Santillan
v. Ashcroft, No. 04-2686, 2004 WL 2297990 (N.D. Cal. Oct.
12, 2004) (certifying a nationwide class of immigrants who
sought relief for lengthy delays in security checks occurring
after the immigrants had been granted permanent resident sta-
tus); In re Hung Phuoc Nguyen, No. A44 233 829, 2005 WL
3802171 (BIA 2005) (upholding IJ’s grant of withholding of
removal and remanding because “the record does not reveal
that the required background and security checks were com-
pleted during the proceedings”); In re Xiu Zhen Sun, No. A95
176 365 (BIA 2005) (granting withholding of removal relief
without reservation while granting asylum relief “dependent
upon the required security checks”).
[5] Moreover, the record indicates that Cui did not receive
adequate notice from the IJ regarding the fingerprint require-
ment. In its decision, the BIA presumed that Cui had notice
of the requirement based solely upon the IJ’s statement, on
September 18, 2002, that fingerprints “would have to be done
. . . a minimum of 60 days before the hearing, not more than
120 days.” However, the IJ did not direct this instruction to
Cui, who spoke only Mandarin, but rather spoke to her coun-
sel. The BIA’s finding that “the respondent indicated that she
understood these instructions” has no support in the record at
all. In fact, the record demonstrates that Cui did not speak
during the exchange, unlike at the end of the hearing when,
denying her claim, the IJ directly addressed Cui on her right
to appeal and obligation to report for removal and deportation.
[6] The IJ’s terse instruction to Cui’s counsel certainly
would not meet the notice standards under existing law. Since
Cui’s case, the EOIR amended its regulations to heighten the
notice requirements. See 8 C.F.R. § 1003.47 (effective April
CUI v. MUKASEY 11053
1, 2005). Under the new requirements, several steps must be
followed to ensure that applicants understand the fingerprint
requirement. Upon the applicant’s filing of an application for
relief,
DHS shall notify the [applicant] of the need to pro-
vide biometrics and other biographical information
and shall provide a biometrics notice and instruc-
tions to the [applicant] for such procedures. The
immigration judge shall specify for the record when
the [applicant] receives the biometrics notice and
instructions and the consequences for failing to com-
ply with the [biometrics] requirements.
8 C.F.R. § 1003.47(d). As the EOIR explained, the new rule
“requires immigration judges to cooperate with DHS in . . .
[i]nstructing aliens on how to comply with biometric process-
ing requirements for law enforcement checks.” 70 Fed. Reg.
at 4744.
Cui received no such guidance. There is no evidence that
DHS delivered a fingerprint notice and instructions to Cui, as
is currently required under 8 C.F.R. § 1003.47. The IJ did not
state on the record that Cui received instructions from DHS
on how to update her fingerprints, nor did the IJ provide such
instructions to Cui. See 8 C.F.R. § 1003.47(d) (requiring the
IJ to specify for the record when the applicant receives the
fingerprint notice from DHS). The IJ did not warn Cui that
failure to resubmit new fingerprints in advance of the merits
hearing could result in the pretermission of her claims. See id.
(requiring the IJ to specify for the record the consequences for
failing to submit the required fingerprints).
The government claims that Cui was told of the require-
ment on May 14, 2001. This is misleading. The record indi-
cates that the IJ informed the government attorney that he
expected the government to complete its security check of the
fingerprints (which had already been submitted by Cui) in
11054 CUI v. MUKASEY
advance of the merits hearing, or, if completion was not possi-
ble, to be prepared to proceed without knowing the results of
the security check. The IJ said, “you need to do INS record
checks at least three [to] four months before the hearing. The
appropriate checks must be done by the Government pursuant
to the Court’s instructions. If they fail to do that, I will cer-
tainly consider their grounds but, counsel, I do, do expect the
Government to proceed.”
The government also refers to the I-589 Form Instructions
as evidence that Cui should have known to resubmit her fin-
gerprints in advance of the merits hearing. The Instructions
state, “failure . . . to provide your updated biometrics . . .
without good cause may constitute an abandonment of your
asylum application and result in the denial of employment
authorization.” Form I-589, Application for Asylum and
Withholding of Removal, Instructions, 7 (emphasis added).
However, Cui was not applying for asylum. Instead, she was
seeking withholding of removal and CAT relief. The I-589
Form Instructions give no warning that withholding of
removal or CAT relief may be deemed abandoned because of
failure to produce updated fingerprints.
The BIA did not rely on either the IJ’s May 14 statement
or the I-589 Form as evidence of notice, and neither do we.
Given the circumstances, Cui’s failure to submit updated
fingerprints in advance of the merits hearing was not unrea-
sonable. For these reasons, we find Cui’s degree of diligence
on the matter to have been sufficient.
[7] Another factor we consider in deciding whether the IJ
abused his discretion is any inconvenience caused to the
immigration court by the requested continuance. Baires, 856
F.2d at 92-93. Here, the record demonstrates that granting
Cui’s request would not have resulted in any cognizable
inconvenience to the court or the government. The morning
of June 20, 2003 had already been reserved for Cui’s merits
CUI v. MUKASEY 11055
hearing, so allowing Cui to present testimony on her claims
during that time period would not have required the IJ to
devote any additional time to Cui’s case. If, after hearing the
merits, the IJ decided that Cui was qualified for relief, the IJ
could have simply issued a tentative grant of relief condi-
tioned on the submission and analysis of her fingerprints and
then scheduled a brief hearing to hear the security check
results. If, instead, the IJ had decided that Cui did not qualify
for relief after hearing the merits of her claims, he could have
denied relief immediately. Allowing Cui to present her case
would not have significantly burdened the IJ or the govern-
ment. Thus, this factor also weighs in Cui’s favor.
[8] We also evaluate the denial of the motion for a continu-
ance in light of the length and number of continuances that
have previously been granted in the case. Baires, 856 F.2d at
93. The proceedings in this case had been ongoing for about
two years. When deciding to deny Cui’s motion for a continu-
ance, the IJ inaccurately faulted Cui for the previous delays
in her case.2 Our review of the procedural history, discussed
above, demonstrates that Cui requested few continuances
before her counsel’s June 20, 2003 request. Instead, the delays
were a result of the government’s requests and the IJ’s busy
calendar. It would be unfair to punish Cui for the govern-
ment’s lack of preparation and the crowded docket of the
immigration courts. As frustrating as delays may be, an immi-
grant’s right to have her case heard should not be sacrificed
because of the IJ’s heavy caseload.
2
In his oral decision, the IJ mischaracterized the record. He stated, “[a]t
the conclusion of the presentation of the case on the issues of removabil-
ity, the respondent’s counsel then requested another continuance.” This
statement is not supported by the record. In fact, it was the government,
not Cui’s counsel, that was unprepared to proceed on September 18, 2002
at the conclusion of the removability hearing. When the IJ asked the gov-
ernment if it was ready for the merits hearing, the government attorney
admitted, “no, I haven’t even looked at the substantive claim to be hon-
est.” Cui’s counsel told the IJ, “I’m ready,” and did not request a continu-
ance. The merits hearing was rescheduled for February 5, 2003 so the
government could prepare its case.
11056 CUI v. MUKASEY
CONCLUSION
[9] Because of the IJ’s arbitrary invocation of an ambigu-
ous rule as to which Cui had no notice, Cui was deprived
entirely of an opportunity to present her case. As a result of
the IJ’s decision to deny the continuance, Cui’s claims for
withholding of removal and CAT relief were pretermitted
before she could present any evidence to support them. The
factors we consider — the importance of the evidence
excluded, the reasonableness of the immigrant’s conduct, the
inconveniance to the immigration court, and the prior continu-
ances — strongly militate in favor of Cui. After considering
the extent of the harm that would befall Cui, along with these
factors, we are required to conclude that the denial of a con-
tinuance was arbitrary and unreasonable. Although there are
no bright-line rules for deciding when an IJ’s denial of a con-
tinuance warrants reversal, it is clearly an abuse of discretion
for an IJ to deny a request from an otherwise diligent appli-
cant for a short continuance to submit fingerprints, particu-
larly where the applicant was faced with an unclear
fingerprint requirement and where the applicant was disserved
by an IJ’s inadequate guidance on the requirement. Therefore,
we conclude that the IJ abused its discretion in denying the
continuance and we grant relief and remand for further pro-
ceedings consistent with this opinion.
GRANTED and REMANDED.