Lopez v. Mukasey , 269 F. App'x 8 ( 2008 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 07-1515
MARIA A. LOPEZ, ET AL.,
Petitioners,
v.
MICHAEL MUKASEY, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Circuit Judge,
Campbell and Selya, Senior Circuit Judges.
William E. Graves, Jr. and Graves & Doyle on brief for
petitioners.
Robbin K. Blaya, Attorney, Office of Immigration Litigation,
United States Department of Justice, Peter Keisler, Assistant
Attorney General, Civil Division, and Anthony W. Norwood, Senior
Litigation Counsel, on brief for respondent.
March 14, 2008
CAMPBELL, Senior Circuit Judge. Petitioners Maria Adela
Lopez1 and her daughters Flor Katherin Roman-Nunez and Karen Roman-
Nunez, natives and citizens of Peru, petition for review of a final
order of removal issued by the Board of Immigration Appeals ("BIA"
or "Board") on February 28, 2007. They contend that the Board
abused its discretion when it denied their motion for a continuance
and that denial of the continuance violated their due process
rights. We deny the petition for review.
The petitioners were admitted to the United States in
Miami, Florida, on or about July 31, 2001 as nonimmigrant visitors
with permission to stay in the United States for a temporary period
not to exceed January 30, 2002. On January 30, 2004, the
Department of Homeland Security ("DHS") issued Notices to Appear
charging petitioners with removal because they had overstayed their
time in the United States. Petitioners admitted the charges and
conceded removability. Peru was designated as the country of
removal.
Maria Lopez appeared before the immigration judge ("IJ")
with counsel on April 28, 2005 (her daughters were excused from
coming to the hearing). Their counsel informed the IJ that
petitioners' visa applications had been denied but that they
planned to appeal from the denial. They, therefore, sought a
1
Lopez is referred to as "lead petitioner" unless otherwise
noted, to avoid confusion with her claimed husband, Jorge Lopez.
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continuance of the removal proceedings in order to pursue their
appeal from the visa denials. Petitioners had contended in their
visa applications that because the lead petitioner (Maria Lopez)
had married an American citizen, Jorge Lopez, before her daughters
reached the age of 18, all three petitioners were entitled to an
adjustment of status.
The government opposed the continuance, noting that this
was the second denial of a visa petition ("I-130") in the case.
The government asserted that because the lead petitioner had
engaged in marriage fraud she was barred from receiving a visa by
8 U.S.C. § 1154(c) (prohibiting the granting of immigrant status to
those involved with marriage fraud). In connection with the motion
to continue, however, the government had no objection to allowing
petitioners to file a full copy of their visa petition and the
evidence submitted in connection with it, along with the DHS's
decision and the appeal notice. Petitioners' counsel was ordered
to submit these materials to the immigration court by May 31, 2005.
At the next hearing, on June 23, 2005, petitioners'
counsel admitted he had not submitted the ordered materials by the
prescribed date but said he had appealed from the visa denial and
had with him evidence of having done so. The IJ responded that she
had given the May 31, 2005 date for submission of the visa petition
proceedings so that she could review the application and supporting
documentation to see if there was any merit to the continuance
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request. Petitioners' counsel indicated that "my sense is that the
Government has some--some evidence that, in fact, the marriage was
not entered into in good faith."
The IJ noted that petitioners' counsel had yet to submit
an actual motion for continuance. In response, petitioners'
counsel stated he believed the "best way to proceed" was to have a
hearing on the issue of voluntary departure and handle the visa
issue on appeal to the Board. He said that he had missed the
filing deadline due to the "press of business." The IJ granted
petitioners' counsel another continuance of more than two months to
submit the relevant information. A hearing was scheduled for
October 3, 2005 to decide whether a further continuance should be
granted and to rule on the application for voluntary departure.
The IJ informed counsel that any motion for a continuance was due
on or before September 21, 2005, and that the voluntary departure
issue would be waived if he missed the date.
At a subsequent hearing held on November 9, 2005, the IJ
noted that DHS had submitted as evidence an I-130 filed in
September 30, 2002, the notice of intent to deny, and the denial.
Additionally, DHS submitted a copy of the I-130 that had been
resubmitted on November 23, 2004 and notice of denial of the second
petition on April 18, 2005. DHS opposed any further continuances.
The court pointed out there had been two denials of what was
essentially the same visa petition and that apparently the second
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denial, dated April 18, 2005, was on appeal. Petitioners' counsel
indicated that he was attempting to gather evidence to address some
of the DHS's concerns on appeal and offered some of that evidence
at the instant hearing. Counsel indicated he had copies for the
DHS and the immigration court and that he would be seeking another
continuance.
DHS stated it was opposed to any further continuances
based on petitioners' purported appeal from denial of the visa
petition. DHS counsel said there was a "history of fraud and
shammed marriage" in the case and little prospect for success on
the appeal from the second denial. The IJ agreed with DHS that a
continuance was unwarranted.
Petitioners' counsel argued that medical evidence he
presented concerning Jorge Lopez addressed some of the issues
related to the denial of the I-130. The IJ responded that the
medical evidence did not establish the existence of a marriage.
The IJ denied the motion for a continuance and then recessed to
allow petitioners to speak to their attorney about applying for
voluntary departure. When the hearing resumed, petitioners'
counsel stated petitioners would not seek voluntary departure.
The IJ then denied the motion to continue in an opinion
issued on November 9, 2005. She found that the evidence submitted
did not establish any exceptional or actual hardship to Lopez.
Further, she found that the documentation did not compel a finding
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different from that arrived at by DHS. She said the Board should
decide the I-130 appeal as quickly as possible. As petitioners did
not seek voluntary departure, she ordered them removed to Peru.
On February 28, 2007, the Board dismissed petitioners'
appeal from the denial of the continuance. The Board explained
that an IJ may grant a motion for continuance only for good cause
shown and that a denial of such a motion will not be reversed
"unless the alien establishes that the denial caused her actual
prejudice and harm and materially affected the outcome of her
case." In re Perez-Andrade, 19 I&N Dec. 433 (BIA 1987).
The Board found that a review of the record showed that
on two occasions, Jorge Lopez filed an I-130 on behalf of Maria
Lopez and her children. On November 21, 2003, in response to the
first I-130, U.S. Citizenship and Immigration Services ("CIS")
issued a Notice of Intent to Deny detailing allegations of a sham
marriage between Maria and Jorge Lopez. The Notice of Intent
stated that the lead petitioner (Maria Lopez) was in fact married
to Luis Roman, a Peruvian national and the father of her two
children, with whom she resided in Cranston, Rhode Island. The
Notice went on to say she had previously provided sworn testimony
to CIS that she had not been married and that the father of her
children resided in Peru. Her request to withdraw this petition
was rejected by CIS, and a final decision issued finding petitioner
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had entered into a sham marriage for the purpose of evading the
immigration laws.
The Board's decision went on to note that Jorge Lopez had
refiled the I-130 on behalf of the petitioners. Supplemental
information submitted by the lead petitioner acknowledged she was
in fact married to Luis Roman when the original petition was filed
but said she had divorced him on May 6, 2004 and married Jorge
Lopez the next day. Maria and Jorge Lopez were called to the local
CIS office to provide testimony regarding the petition. CIS issued
a final decision on April 18, 2005, upholding its previous finding
of marriage fraud. The decision contained a thorough review of the
wholly inconsistent testimony given by the two during their
separate interviews with CIS.
The Board agreed with the IJ that petitioners had not
shown good cause for a continuance. The Board also questioned the
truth of petitioners' representation to the IJ that a valid appeal
from the I-130 was pending before the Board. The only evidence of
such an appeal, the Board said, was a photocopy of an appeal and
fee receipt dated May 5, 2005, but stamped by the immigration court
on September 21, 2005, well after the period for a timely appeal
had expired. Petitioners have submitted no evidence beyond the fee
receipt in support of their claim to have appealed.
On October 1, 2007, the Board denied the petitioners'
motion to reopen proceedings for adjustment of status. In that
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decision, as to which no review action is pending, the Board
observed in a footnote that:
It is noted that the lead respondent [Maria Lopez]
asserts that she is the beneficiary of a Form I-130,
which was twice denied by the United States Citizenship
and Immigration Services (CIS). She further claims that
she appealed from the CIS denial to this Board. However,
the Board's electronic system does not confirm the filing
of the appeal, nor has the respondent provided a copy of
such.
Discussion
Petitioners argue that the BIA abused its discretion in
denying their request for a continuance to pursue their adjustment
claim. They further argue that their due process rights were
violated. We find a conspicuous absence of merit in both
contentions and deny the petition for review.
The Attorney General's regulations authorize immigration
judges in their discretion to grant or deny continuances. 8 C.F.R.
§ 1003.29 ("The immigration judge may grant a motion for
continuance on good cause shown."); Alsamhouri v. Gonzales, 484
F.3d 117, 122 (1st Cir. 2007); see also 8 C.F.R. § 1240.6 ("the
immigration judge may grant a reasonable adjournment . . . for good
cause shown."). The decision whether to continue a hearing is
committed to the immigration judge's sound discretion, see In re
Sibrun, 18 I&N Dec. 354, 356-57 (BIA 1983). Thus, on a petition
for review, we review an IJ's denial of a continuance only for an
abuse of discretion. Feliz v. Gonzales, 487 F.3d 71, 73 (1st Cir.
2007). We have said that we will reverse only if the IJ "made an
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error of law or acted in a manner that is arbitrary or capricious."
Cruz-Bucheli v. Gonzales, 463 F.3d 105, 107 (1st Cir. 2006).
Nothing of the sort appears here.
As the Board found, the IJ did not abuse her discretion
when she denied petitioners' motion for continuance. There was
strong, indeed overwhelming, evidence in the record of the visa
petition proceedings supporting the DHS's determination of marriage
fraud and its recorded denial of the I-130.
The Board, in its review, examined the evidence
carefully, as have we. Petitioners' testimony was studded with
inconsistencies, and the record plainly justified the finding of
marriage fraud. There was little reason to believe that finding
would be overturned on appeal.
Additionally, the Board determined that while petitioners
argued, in justification of a continuance, that they had appealed
to the Board from the second I-130 denial, the only evidence of an
appeal was a fee receipt dated May 5, 2005 and a copy of a notice
of appeal stamped on September 21, 2005, well after expiration of
the period allowed for filing an appeal. 8 U.S.C. § 1003.38(b).
In its October 1, 2007 denial of the petitioners' motion to reopen,
the Board once again noted that there was no record of the filing
of an appeal and that the petitioners had not provided a copy of
one. Moreover, even if a valid appeal were pending, the Board
reasonably found that "good cause is not shown by requesting a
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continuance to await the results of a collateral event, which may
occur at some indefinite time in the future, and the outcome of
which, may or may not be favorable" to petitioners. There was no
abuse of discretion in the denial of the motion for a continuance.
Petitioners also argue they were not provided with due
process because CIS "appeared gratuitously harsh" to the family and
because they were not represented by counsel in their I-130
application. We review constitutional claims de novo. Ibe v.
Gonzales, 415 F.3d 142, 144 (1st Cir. 2005). An alien may not
predicate a due process claim on a denial of adjustment of status
because it is a discretionary form of relief in which the alien has
no cognizable liberty interest. Naeem v. Gonzales, 469 F.3d 33,
38-39 (1st Cir. 2007). Moreover, there is no evidence here of
undue harshness by anyone.
Further, petitioners have failed to show any prejudice.
"[B]efore a petitioner in an immigration case may advance a
procedural due process claim, he must allege some cognizable
prejudice fairly attributable to the challenged process." Lattab
v. Ashcroft, 384 F.3d 8, 20 (1st Cir. 2004). Petitioners contend
they had no opportunity to rebut the claims against them, but they
could have responded to the Notice of Intent to Deny and attempted
to explain why the DHS's evidence of marriage fraud was incorrect
or insufficient. Petitioners had their petitions reviewed twice,
and they have yet to show that the proceedings were "fundamentally
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unfair." Jobe v. INS, 238 F.3d 97, 98 n.3 (1st Cir. 2001) (en
banc) (quoting Bernal-Vallejo v. INS, 195 F.3d 56, 63 (1st Cir.
1999)) (internal quotation marks omitted).
Petition for review is denied.
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