Attada Passe v. U.S. Attorney General , 176 F. App'x 54 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 24, 2006
No. 05-13198 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A77-574-594
ATTADA PASSE,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of an Order of the
Board of Immigration Appeals
_________________________
(March 24, 2006)
Before TJOFLAT, CARNES and FAY, Circuit Judges.
PER CURIAM:
Attada Passe, through counsel, petitions for review of the Board of
Immigration Appeals’ (“BIA’s”) order affirming the immigration judge’s (“IJ’s)
decision denying his motion to continue his removal proceedings pending
adjudication of a second petition for an immediate relative visa (“I-130 visa”).
Passe contends that the IJ’s denial of this motion was an abuse of discretion. For
the reasons set forth more fully below, we deny Passe’s petition.
In April 1996, Passe, a native and citizen of Thailand, was admitted into the
United States with a non-immigrant B-2 visitor’s visa, with permission to remain
in the United States until October 5, 1996. Passe, however, remained in the United
States past this date, along with his father and brother. Thus, in April 2003, the
former Immigration and Naturalization Service (“INS”)1 issued a Notice to Appear
(“NTA”), charging Passe with removability, pursuant to INA § 237(a)(1)(B), 8
U.S.C. § 1227(a)(1)(B), for being an alien who remained in the United States for a
time longer than permitted.
In September 2003, during a preliminary removal hearing before the IJ,
Passe, through counsel, conceded removability as charged. Passe, however, moved
for a continuance of his removal proceedings, arguing that his father had married a
1
On November 25, 2002, President Bush signed into law the Homeland Security Act of
2002, Pub. L. No. 107-296, 116 Stat. 2135. This legislation created a new Department of
Homeland Security, abolished the INS, and transferred its functions to the new department.
Because this case was initiated while the INS still was in existence, this memorandum refers to
the agency as the INS.
2
United States citizen, and Passe’s step-mother had filed on his behalf a petition for
an I-130 visa. Although the IJ noted that the I-130 visa petition had been denied,
resulting in the present removal proceedings, the IJ granted Passe a two-month
continuance for Passe’s counsel to determine if an appeal of this denial was
pending.
In November 2003, when Passe’s removal proceedings re-convened, Passe
moved for another continuance, explaining that he had pending a second petition
for an I-130 visa, as well as his own application for adjustment of status (“I-485
application”).2 In a supporting written motion, Passe cited to the BIA’s decision in
Matter of Garcia, 16 I & N Dec. 653 (BIA 1978), modified by, Matter of Arthur,
20 I & N Dec. 475 (BIA 1992), and he argued that, although the first I-130 visa
petition his step-mother had filed on his behalf had been denied because the INS
had found invalid her marriage to Passe’s father, this denial was based on
insufficient evidence, instead of fraud. The government opposed this motion,
responding that Passe’s mother had not appealed the denial in September 2002, of
2
Because Passe was relying on his status as a minor step-child of a United States citizen,
his step-mother had to successfully petition for an immediate relative visa on his behalf. See 8
C.F.R. § 204.2(d)(2)(iv). Moreover, either simultaneously with, or subsequent to, the filing of
this I-130 visa, Passe had to apply for adjustment of his non-immigrant status. See INA
§ 245(a), 8 U.S.C. § 1255(a). To establish entitlement to adjustment of status, Passe had to show
that (1) he had applied for an adjustment of status, (2) he was eligible to receive an immigrant
visa and was admissible to the United States for permanent residence, and (3) an immigrant visa
was immediately available to him at the time his application was filed. See id.3
her first petition for an I-130 visa.3 Passe replied that his step-mother had
submitted additional unidentified evidence in support of her second petition for an
I-130 visa in June 2003.
That same day, the IJ issued an oral decision, denying Passe’s request for a
continuance of his removal proceedings. The IJ explained that, in addition to the
fact that Passe was relying on a second petition for an I-130 visa, the denial of the
first petition had not been appealed. The IJ also reasoned as follows:
Were there to be an ‘automatic’ continuance every time a new I-130
[visa petition] was filed[,] irrespective of the fate of an earlier
[petition] then in effect, an individual could perpetrate proceedings
before this Court ad infinitum simply by the expedient of continuing
to file I-130s without regard to the denial of earlier such petitions.
In May 2005, the BIA adopted the IJ’s decision and dismissed Passe’s
appeal. The BIA also explained that the IJ did not abuse his discretion in denying
Passe’s motion for a continuance because: (1) the unapproved second petition for
an I-130 visa in the instant case was not an adequate basis for a continuance,
especially in light of the previously denied visa petition; and (2) the BIA’s prior
decision in Garcia did not establish an “inflexible rule” requiring IJs in all cases to
continue removal proceedings pending adjudication of related visa petitions.
3
The record reflects that the first I-130 petition that was filed on Passe’s behalf was filed
in May 1999 and denied in September 2002, and that Passe’s I-485 application to register
permanent residence or adjust status, based upon the filing of the I-130 petition, was filed in
February 2001 and denied in December 2002.
4
Passe argues on appeal that the IJ abused his discretion in denying Passe’s
motion for a continuance of his removal proceedings. Relying on the BIA’s
decisions in In re Garcia and In re Velarde-Pacheco, 23 I & N Dec. 253 (BIA
2002), and on this Court’s decision in Bull v. I.N.S., 790 F.2d 869 (11th Cir.
1986), Passe specifically contends that “it has long been the policy of the [INS] to
allow qualified beneficiaries to remain in the United States pending final
adjudication of their petitions and applications for adjustment of status,” and that
he and his family should have had the opportunity to present all of his evidence
through the second I-130 petition. Passe asserts that an abuse of discretion is
evident from documents he has attached to his appellate brief, which he asserts
show that his father was granted a continuance of his removal proceedings based
on this same I-130 petition.4 Passe also contends that a continuance was warranted
because, despite that the first I-130 petition had been denied and no appeal had
been taken from that denial, the second petition for an I-130 visa would be granted.
As a preliminary matter, we are “obligated to inquire into subject-matter
jurisdiction sua sponte whenever it may be lacking.” Chacon-Botero v. U.S. Att’y
Gen., 427 F.3d 954, 956 (11th Cir. 2005) (quotation omitted). “Notwithstanding
4
Passe has attached to his appellate brief (1) a memorandum supporting his father’s
motion for a continuance of his removal proceedings, filed March 16, 2005; and (2) a notice of
hearing in removal proceedings, reflecting that his father has scheduled a “Master Individual
hearing” before an IJ in May 2006.
5
any other provision of law . . . no court shall have jurisdiction to review . . . any . . .
decision or action of the Attorney General or the Secretary of Homeland Security
the authority for which is specified under this subchapter to be in the discretion of
the Attorney General or the Secretary of Homeland Security.” INA
§ 242(a)(2)(B)(ii), 8 U.S.C. § 1252(a)(2)(B)(ii). We, however, have determined
that § 1252(a)(2)(B)(ii) precludes our review of discretionary decisions of the
Attorney General in only the specific circumstances where the decision or action of
the Attorney General is specified in this subchapter, and that the express authority
of an IJ to grant or deny a motion to continue a hearing is not contained in this
subchapter. Zafar v. U.S. Att’y Gen., 426 F.3d 1330, 1334 (11th Cir. 2005). Thus,
we concluded in Zafar that we had jurisdiction to review an IJ’s discretionary
denial of a motion to continue removal proceedings. Id. at 1334-35. Similarly, we
conclude that we have subject-matter jurisdiction to review the IJ’s decision to
deny Passe’s motion for a continuance pending resolution of his visa proceedings.
The IJ has discretion to grant a continuance in an immigration proceeding
“for good cause shown.” 8 C.F.R. § 1003.29. The grant of a continuance is within
the IJ’s “broad discretion.” Zafar, 426 F.3d at 1335. “Judicial review of denials of
discretionary relief incident to [removal] proceedings . . . is limited to determining
‘whether there has been an exercise of administrative discretion and whether the
matter of exercise has been arbitrary or capricious.’” Garcia-Mir v. Smith, 766
6
F.2d 1478, 1490 (11th Cir. 1985) (internal quotation omitted) (reviewing denials of
motions to reopen). Indeed, in discussing analogous denials of motions to reopen,
the Supreme Court has explained that motions to reopen are disfavored, especially
in removal proceedings, because, as a general matter, “every delay works to the
advantage of the [removable] alien who wishes merely to remain in the United
States.” I.N.S. v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 724-25, 116 L.Ed.2d
823 (1992).
In Garcia, the BIA set forth an exception to the general rule that deportation
proceedings need not be continued, or reopened following an order of deportation,
where: (1) there was pending an immigrant visa petition, filed on the alien’s behalf,
along with an adjustment of status application; and (2) the visa petition and the
status-adjustment application were “prima facie” approvable. See Garcia, 16 I & N
Dec. at 656-57.5 The BIA, however, cautioned in Garcia:
We do not intend, by our holding, to establish an inflexible rule
requiring the [IJ] in all cases to continue the deportation proceedings
at the initial hearing or to remand . . .. It clearly would not be an
abuse of discretion for the [IJ] to summarily deny a request for a
5
In response to certain amendments to the INA in 1986 and 1990, which were aimed at
discouraging fraudulent marriages for immigration purposes, Garcia was modified in 1992 by
the BIA’s decision in Arthur, whereby Garcia’s presumption in favor of a continuance for
consideration of applications for adjustment of status based upon pending visa petitions now
does not apply to visa petitions based on marriages that were entered into following the
commencement of removal proceedings against the petitioners. See Arthur, 20 I & N Dec. at
479. In this case, however, the second petition that was pending at the time the IJ denied Passe a
continuance was based on a marriage that occurred prior to commencement of removal
proceedings against him. Thus, Arthur’s modification of Garcia is not applicable.
7
continuance . . . upon his determination that the visa petition is
frivolous or that the adjustment application would be denied on
statutory grounds or in the exercise of discretion notwithstanding the
approval of the [visa] petition.
See id. at 657. Similarly, in In re Velardo-Pacheco, another BIA decision relied on
by Passe, the BIA clarified that IJs were not required “to reopen proceedings
pending adjudication of an I-130 visa petition in every case,” and that they still
could deny such motions if they determined that a respondent’s visa petition was
frivolous or that adjustment would be denied in any event, either on statutory
grounds or in the exercise of discretion. See In re Velardo-Pacheco, 23 I & N Dec.
at 257.
Citing to Garcia, we discussed in Bull that the normal procedure, where a
petition and adjustment application had been accepted for processing prior to the
issuance of an Order to Show Cause, was to hold an adjustment application in
abeyance pending final adjudication of the visa petition. See Bull, 790 F.2d at 871.
We, however, also explicitly noted the BIA’s caution in Garcia that it did not
intend to create an “inflexible rule requiring [IJs] in all cases to continue the
deportation proceedings.” See id. at 872. Thus, we explained that the IJ’s denial
of a request for a continuance based upon the IJ’s conclusion that the petitioner’s
guilty plea made him statutorily ineligible for adjustment of status would not have
been an abuse of discretion were that legal conclusion correct. See id.8
Nevertheless, because the IJ’s denial was based on an incorrect legal conclusion,
and because neither the IJ, nor the BIA in affirming the IJ’s denial of the
continuance, discussed any alternative reasons for this denial, we concluded in Bull
that an abuse of discretion had occurred. See id. at 872-73.
Most recently, in Zafar, we examined in an analogous situation whether IJs
abused their discretion in denying petitioners’ motions for continuances to await
decisions in their pending requests for labor certifications when the petitioners only
offered the “speculative” possibility that, at some point in the future they might
receive labor certification.6 See Zafar, 426 F.3d at 1335-36. We explained that the
petitioners could not have filed an “approvable” visa petition without the labor
certification and, thus, had failed to demonstrate that they had a visa petition
“immediately available” to them and that they were eligible for adjustment to
permanent resident status. See id. at 1336. We, therefore, concluded that the IJs
6
Certain aliens who are otherwise ineligible to adjust their temporary resident status in
the United States are permitted to pay a penalty fee for adjusting their status to that of a
“permanent resident” and to be considered “grandfathered” into the United States if he is the
“beneficiary” of an application for labor certification that was properly filed by April 20, 2001,
and that was “approvable when filed.” See INA § 245(i)(1), 8 C.F.R. § 245.10(a)(1)(i)(B).
“Approvable when filed means that, as of the date of the filing,” the application for labor
certification was “properly filed, meritorious in fact, and non-frivolous . . ..” See 8 C.F.R.
§ 245.10(a)(3). Once the Attorney General receives the application for adjustment of status and
the appropriate fee, he “may” adjust the status if the alien is “eligible to receive an immigrant
visa and is admissible,” and “an immigrant visa is immediately available to the alien at the time
the application is filed.” See INA § 245(i)(2), 8 U.S.C. § 1255(i)(2). An immigrant visa,
however, cannot be issued to the alien until the labor certification is approved. See INA
§ 203(b)(3)(C), 8 U.S.C. § 1182(a)(5).
9
did not abuse their discretion in denying the petitioners’ motions to continue their
removal proceedings. See id.Unlike the facts in Bull, in denying Passe’s motion for a continuance, the IJ
did not rely on an incorrect legal conclusion; instead, the IJ explained that Passe
was relying on a second I-130 visa petition, that the first petition had been denied,
and that the denial of this first petition had not been appealed. The IJ also
explained that, if he exercised his discretion in granting continuances under these
facts, petitioners could continue removal proceedings indefinitely by repeatedly
filing petitions for I-130 visas. Similarly, the BIA discussed that the pending
unapproved second petition for an I-130 visa in this case was not an adequate basis
for a continuance, especially in light of the previously denied visa petition.
Indeed, Passe conceded during his removal proceeding that the first I-130
petition had been denied. Moreover, although Passe asserted in his motion for a
continuance that his step-mother had included additional supporting evidence in
the second I-130 petition, he did not explain what this evidence included. Thus,
similar to the facts in Zafar, Passe only offered the “speculative” possibility that, at
some point in the future, the second I-130 visa application might be approved and
he might receive adjustment of status.7 See Zafar, 426 F.3d at 1335-36.
7
To the extent Passe is arguing on appeal that the IJ abused his discretion because
Passe’s father was granted a continuance of his removal proceedings based on the pending I-130
petition in this case, and he has attached to his brief documentation that he claims supports this
10
Accordingly, we conclude that the IJ’s determination that Passe failed to
show “good cause” for a continuance and, thus, his decision not to exercise his
discretion in granting a continuance, was not “arbitrary or capricious.” See 8
C.F.R. § 1003.29; see also Garcia-Mir, 766 F.2d at 1490. We, therefore, deny
Passe’s petition for review.
PETITION DENIED.
argument, we may not consider evidence that was not part of the administrative record, see Al
Najjar v. Ashcroft, 257 F.3d 1262, 1278 (11th Cir. 2001) (holding that we “cannot engage in
fact-finding on appeal, nor may we weigh evidence that was not previously considered below”).
11