Paez-Rodriguez v. Ashcroft , 120 F. App'x 841 ( 2005 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-1862
CARLOS RAMON PAEZ-RODRIGUEZ,
Petitioner,
v.
JOHN ASHCROFT, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Lipez and Howard, Circuit Judges.
Jeffrey B. Rubin and Law Offices of Jeffrey B. Rubin, P.C. on
brief for petitioner.
Emily Anne Radford, Assistant Director, Office of Immigration
Litigation, Civil Division, Department of Justice, Peter D.
Keisler, Assistant Attorney General, Civil Division, Department of
Justice, and Papu Sandhu, Senior Litigation Counsel, on brief for
respondent.
February 3, 2005
Per Curiam. Petitioner Carlos Ramon Paez-Rodriguez
("Paez") seeks review of the June 2, 2004, final order of removal
issued by the Board of Immigration Appeals ("Board") affirming the
immigration judge's decision. Paez is a citizen of the Dominican
Republic who overstayed a non-immigrant visa. Paez does not
contest removability; what he objects to is the refusal of the
immigration judge and the Board to continue the removal proceeding
so that he could pursue alternative relief.
Paez entered this country in 1994, and in 1997, Paez and
his wife Mary Luz Lopez applied for permanent residency for Paez
based on his marriage to a U.S. citizen. On July 24, 2000, the INS
denied the application because Paez had in 1999 failed to respond
to the INS's request that he be fingerprinted. The INS initiated
removal proceedings on April 26, 2002.
On February 13, 2003, after a delay to permit Paez to
obtain counsel, Paez indicated his intent to apply for an
adjustment of status based on his marriage to a U.S. citizen. By
this time it appears that Paez and his wife were contemplating a
divorce, but the immigration judge nevertheless granted a
continuance to allow Paez to submit evidence that his spouse had
submitted or re-submitted a visa petition on his behalf. On
February 21, a further continuance was granted, Paez being directed
to submit proof of a visa application by March 10.
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Paez never submitted the application. Instead, on April
10, 2003, his counsel explained that Paez' wife was unwilling to
sign a visa application but that Paez was now seeking through his
employer a labor certification to support a visa application, and
he requested a further continuance to pursue this effort.
Accepting the government's argument that this route should have
been pursued at an earlier time, the immigration judge denied the
continuance "under the circumstances of the case."
On April 17, 2003, Paez's counsel again sought a
continuance for Paez to pursue the labor certification, filing with
the immigration court a recently completed certification
application. The immigration judge "reaffirm[ed]" her denial of
the continuance, noting that there was no evidence that the
application had actually been filed and that it had in any event
been prepared only two days before. Paez appealed from the denial
of the continuance to the Board, which summarily affirmed pursuant
to 8 C.F.R. § 1003.1(e)(4) (2004).
Paez now appeals from the denial of his motion for a
continuance, asserting that it was a violation of his due process
rights in addition to an abuse of discretion. He also asserts that
the Board erred by summarily affirming rather than having a full
panel review his case. We note without resolving a threshold
objection by the government and deny the petition for review on the
merits.
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The government at the outset asserts that we lack
jurisdiction to review the immigration judge's denial of the motion
for continuance because of 8 U.S.C. § 1252(a)(2)(B) (2000), which
states:
Notwithstanding any other provision of law, no
court shall have jurisdiction to review -- . .
. (ii) any other decision or action of the
Attorney General the authority for which is
specified under this subchapter to be in the
discretion of the Attorney General.
The government argues that immigration judges conducting removal
proceedings are exercising the Attorney General's powers by
delegation, and it notes that 8 C.F.R. § 1003.29 (2004) says that
the "immigration judge may grant a motion for continuance for good
cause shown." (emphasis supplied).
At least two circuit courts share the government's view.
See, e.g., Yerkovic v. Ashcroft, 381 F.3d 990, 995 (10th Cir.
2004); Onyinkwa v. Ashcroft, 376 F.3d 797, 799 (8th Cir. 2004). On
the other hand, one could argue about whether the rule's grant of
discretion to the immigration judge is a matter "which is specified
under this subchapter" to be within the Attorney General's
discretion, given that the grant or denial of continuances in
removal proceedings is not listed as a discretionary decision in
the statute. See Medina-Morales v. Ashcroft, 371 F.3d 520, 528
(9th Cir. 2004). Contra 8 U.S.C. § 1184(d) (2000) (providing that
the "Attorney General in his discretion" may waive a particular
visa requirement).
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In any event the outcome in this case is effectively the
same regardless of whether we have authority to review the denial
of a continuance, because the denial was not an abuse of
discretion--let alone a denial of due process. Steel Co. v.
Citizens for a Better Environment, 523 U.S. 83, 101 (1998),
requiring us to assure ourselves that we have Article III
jurisdiction, does not require that we resolve the threshold
question; the government's objection goes only to our statutory
authority to review a specific class of decisions. Restoration
Preservation Masonry, Inc. v. Grove Europe Ltd., 325 F.3d 54, 60
(1st Cir. 2003).
Under an abuse-of-discretion standard, this is not a
close case. Paez had to know from the start that his prospects in
the removal proceeding for obtaining a visa based on marriage were
doubtful. Yet between February and mid-April 2003, he did not
pursue a labor certification. Although Paez says that the
immigration judge gave no reason for refusing the initial
continuance for this purpose, in context it is apparent that she
accepted the government's argument of undue delay.
When Paez renewed the request on April 17, he still had
not actually filed a visa application based on a labor certificate
(and he may not have even filed the labor certification
application). Contra Matter of Garcia, 16 I & N Dec. 653, 657 (BIA
1978), quoted in Oluyemi v. INS, 902 F.2d 1032, 1034 (1st Cir.
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1990) (continuance encouraged when an alien has submitted a "prima
facie approvable visa petition"). Yet the alien must first submit
and have approved a labor certification application, then submit a
visa petition based on the labor certification; only once that is
approved is the alien eligible for permanent residency, see United
States v. Ryan-Webster, 353 F.3d 353, 356 (4th Cir. 2003).
Finally, we reject Paez's contention that summary
affirmance in his case was improper under 8 C.F.R. §
1003.1(a)(7)(ii), (e)(4)(i), (e)(6). Whatever the reviewability of
the decision to act summarily, this case posed a fact-specific
procedural matter and involved no new legal issues.
The petition for review is denied.
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