Hoxha v. Attorney General of the United States , 426 F. App'x 109 ( 2011 )

- NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-2459
___________
ILIR HOXHA; FJORALBA HOXHA; BRENDA HOXHA,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency Nos. A079-433-629, A079-433-630, & A079-433-631)
Immigration Judge: Honorable Michael W. Straus
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 2, 2011
Before: SLOVITER, CHAGARES and WEIS, Circuit Judges
Opinion filed: May 4, 2011
___________
OPINION
___________
PER CURIAM.
Lead petitioner Ilir Hoxha, along with his wife and daughter, petition for
review of the Board of Immigration Appeals’ (“BIA”) April 30, 2010 decision dismissing
their appeal from the Immigration Judge’s (“IJ”) decision denying a continuance in their
1
asylum-only proceedings. For the reasons that follow, we will deny the petition.
I.
Petitioners are natives and citizens of Albania. In January 2002, they
entered the United States with fraudulent passports and sought admission under the Visa
Waiver Program (“VWP”).1 When their admission was denied, they requested asylum
and were placed in asylum-only proceedings.
At the first master calendar hearing, held on September 5, 2002,
Petitioners’ attorney, John Manos, informed the presiding IJ, the Honorable Donald V.
Ferlise that the asylum application had yet to be completed. As a result, IJ Ferlise
continued the case and instructed Petitioners to submit their application at the next master
calendar hearing, which was set for January 16, 2003. At the January 16, 2003 hearing,
Mr. Hoxha filed an application for asylum, withholding of removal, and relief under the
Convention Against Torture — listing his wife and daughter as derivatives — and IJ
Ferlise scheduled Petitioners’ merits hearing for April 13, 2004.
On March 26, 2004, attorney Andre Michniak entered his appearance on
Petitioners’ behalf and moved for a continuance, stating that Manos had “retired from
1
Under the VWP, aliens from designated countries are allowed to visit the United States
for ninety days or less without a visa. See 8 U.S.C. § 1187(a). Aliens who request
admission under the VWP agree to waive any challenge to their removal; however, they
may still seek asylum, withholding of removal, and relief under the Convention Against
Torture (“CAT”). Shehu v. Att’y Gen. of the U.S., 482 F.3d 652, 655 (3d Cir. 2007)
(citing 8 U.S.C. § 1187(b)). VWP applicants who request asylum, withholding of
removal, and/or CAT relief are placed in “asylum-only” proceedings. Shehu, 482 F.3d at
655.
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private practice” and transferred the Petitioners’ case to him only a few days earlier. (See
Admin. R. at 359.) The IJ granted the motion and continued Petitioners’ merits hearing
to December 6, 2005. Four days before this rescheduled hearing date, Michniak moved
to withdraw as Petitioners’ counsel, averring that Mr. Hoxha had, inter alia, “recently
made statements to Counsel which make it impossible for Counsel to continue with his
representation.” (Id. at 335.) The IJ denied the motion.
Both Michniak and another attorney, Marco Pignone, III, appeared with
Petitioners at the December 6, 2005 hearing.2 Michniak reiterated his request to
withdraw — he alluded to an unspecified ethical concern — and informed the presiding
IJ, the Honorable Michael W. Straus that Petitioners had retained Pignone the night
before to represent them. When IJ Straus asked Pignone if he was ready to proceed,
Pignone requested another continuance. The IJ denied this request, stating that “[t]here
has already been a lengthy continuance in this case so whatever attorney it is we need to
go forward today.” (Id. at 126.) The IJ subsequently asked Mr. Hoxha, “[W]ho do you
want to represent you today?” (Id. at 131.) Mr. Hoxha elected to proceed with Pignone.
The IJ then granted Michniak’s motion to withdraw and afforded Pignone fifteen minutes
to confer with Mr. Hoxha. When the hearing resumed, the IJ proceeded to hear Mr.
Hoxha’s testimony (the other two petitioners did not testify), which centered on
allegations that he had suffered persecution on account of his membership in Albania’s
2
Although the transcript of the merits hearing bears a date of November 22, 2005, the
parties submit, and the record otherwise reflects, that this hearing indeed took place on
December 6, 2005.
3
Democratic Party.
At the end of the hearing, the IJ denied Petitioners’ application. The IJ
concluded that Mr. Hoxha’s testimony lacked credibility, and that, even if the testimony
had been credible, he had failed to establish past persecution. The IJ further concluded
that, in light of the adverse credibility determination and the background evidence on
Albania, Mr. Hoxha had failed to establish a well-founded fear of future persecution.
Because the IJ determined that Mr. Hoxha had failed to satisfy the standard for asylum,
the IJ held that he could not satisfy the higher standard for withholding of removal. The
IJ also concluded that Mr. Hoxha had failed to show that he would likely be tortured
upon returning to Albania.
Petitioners appealed the IJ’s decision to the BIA. The notice of appeal
identified four arguments, one of which was that the IJ had erred in denying Petitioners’
motion for a continuance. Petitioners’ brief, however, addressed only the IJ’s denial of
asylum and withholding of removal. On May 30, 2007, the BIA dismissed the appeal. In
doing so, the BIA addressed only the IJ’s adverse credibility determination, concluding
that it was “amply supported by the record.” (See id. at 75-76.)
Petitioners then petitioned this Court to review the BIA’s decision. That
petition did not challenge the BIA’s decision upholding the IJ’s denial of asylum and
withholding of removal; rather, it argued only that the IJ had erred in denying the motion
for a continuance. On March 2, 2009, we held that Petitioners had exhausted this
argument before the BIA by clearly identifying it in their notice of appeal. See Hoxha v.
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Holder, 559 F.3d 157, 163 (3d Cir. 2009). Because the BIA had not addressed this
argument in its decision, we remanded the case so that the BIA could do so. See id. at
163-64.
On remand, the BIA issued a decision on October 15, 2009, rejecting
Petitioners’ continuance claim. The BIA concluded that Petitioners had “failed to
articulate how the denial of [their] request for a continuance caused [them] actual
prejudice and harm and/or materially affected the outcome of [their] application.”
(Admin. R. at 46.) Petitioners did not petition this Court to review that BIA decision.
Instead, they moved to reopen the proceedings before the BIA. They claimed that,
although they had submitted a brief to the BIA before it had issued its October 15, 2009
decision, that brief had not been made part of the administrative record and, thus, had not
been considered by the BIA in rendering its decision.
On April 30, 2010, the BIA, exercising its sua sponte authority, reopened
Petitioners case to consider the arguments in the aforementioned brief. The BIA
concluded that, even in light of these new arguments, Petitioners’ continuance claim still
failed. Petitioners now seek review of this most recent BIA decision.3
II.
An IJ “may grant a motion for continuance for good cause shown.” 8
C.F.R. § 1003.29. In this case, the BIA, in its April 30, 2010 decision, concluded that the
3
We note that the instant petition mistakenly refers to the BIA’s April 30, 2010 decision
as having been entered on May 30, 2010.
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IJ’s denial of Petitioners’ motion for a continuance was supported by the record,
highlighting that (1) the IJ had previously granted Petitioners several continuances, (2)
the IJ afforded Petitioners “ample opportunity” to present their claim during the
December 6, 2005 hearing, and (3) Petitioners had failed to show that they were
prejudiced by the denial of a continuance. (See Admin. R. at 3.) We have jurisdiction to
review this BIA decision, and do so under an abuse of discretion standard. See Hashmi
v. Att’y Gen. of the U.S., 531 F.3d 256, 259 (3d Cir. 2008). Under this deferential
standard of review, we may not disturb the BIA’s decision unless it is “arbitrary,
irrational or contrary to law.” See id. “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 according
to the facts and circumstances of each case.” Ponce-Leiva v. Ashcroft, 331 F.3d 369, 377
(3d Cir. 2003) (quotation marks and citation omitted).
Petitioners argue that the BIA erred in concluding that they were not
prejudiced by the IJ’s denial of their motion for a continuance. They contend that, as a
result of the IJ’s denial, Pignone had inadequate time to prepare for the merits hearing,
which in turns affected the “quality” of Mr. Hoxha’s testimony. This argument is
unavailing. Aside from suggesting that Mr. Hoxha would have correctly testified as to
where and when he was married, Petitioners fail to identify any testimony that would
have been different had the IJ granted a continuance. Moreover, Petitioners do not show
how Mr. Hoxha’s ability to correctly recall the location and date of his wedding would
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have caused the IJ to find his testimony credible, let alone find past persecution or a well-
founded fear of future persecution. Although Petitioners allege that IJ Straus, who
apparently was filling in for IJ Ferlise, denied their motion for a continuance in part to
reign in IJ Ferlise’s “expanding” docket, we agree with the BIA that this allegation is
“purely speculative with no basis in fact.” (See Admin. R. at 3.)
We have considered Petitioners remaining arguments and conclude that
they lack merit.4 Accordingly, and in light of the above, we hold that Petitioners have
failed to establish that the BIA erred in upholding the IJ’s denial of their motion for a
continuance. As a result, we will deny the petition for review.5
4
Although Petitioners seek to challenge the IJ’s denial of their asylum application, that
decision is not properly before us. We note that Petitioners could have raised this
challenge when they petitioned this Court to review the BIA’s May 30, 2007 decision;
however, they elected not to do so. See Hoxha, 559 F.3d at 158; see also Laborers’ Int’l
Union v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994) (“An issue is waived
unless a party raises it in its opening brief, and for those purposes a passing reference to
an issue will not suffice to bring that issue before this court.”) (internal quotation marks
and citation omitted).
5
Petitioners have filed a “Motion to Correct Administrative Record,” requesting that the
Government’s non-opposition to their motion to reopen the proceedings before the BIA
be included in the administrative record. Because the Government’s non-opposition to
Petitioners’ motion to reopen does not impact our analysis here — we note that the
Government, in that same document, made clear that its non-opposition to the motion to
reopen “does not constitute a non-opposition to [Petitioners’] applications for relief” —
we will deny the instant motion.
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