Guerrero Illescas v. Garland ( 2021 )

20-1523
Guerrero Illescas v. Garland
BIA
Conroy, IJ
A089 909 148
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the 3rd
day of September, two thousand twenty-one.
PRESENT:
JOHN M. WALKER, JR.,
JOSEPH F. BIANCO,
STEVEN J. MENASHI,
Circuit Judges.
_____________________________________
FELICIANO EDGAR GUERRERO ILLESCAS,
Petitioner,
v. 20-1523
MERRICK B. GARLAND, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: H. Raymond Fasano, Youman, Madeo &
Fasano, LLP, New York, NY.
FOR RESPONDENT: Brian M. Boynton, Acting Assistant
Attorney General; Stephen J. Flynn,
Assistant Director; James A. Hurley,
Attorney, Office of Immigration
Litigation, United States Department
of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a Board
of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,
ADJUDGED, AND DECREED that the petition for review is DENIED.
Petitioner Feliciano Edgar Guerrero Illescas (“Guerrero”), a
citizen of Mexico, seeks review of an April 13, 2020 decision of
the BIA denying his motion to remand and affirming an April 30,
2018 decision of an Immigration Judge (“IJ”), which denied his
motion for a continuance. In re Feliciano Edgar Guerrero
Illescas, No. A 089 909 148 (B.I.A. Apr. 13, 2020), aff’g No. A 089
909 148 (Immigr. Ct. N.Y.C. Apr. 30, 3018). We assume the parties’
familiarity with the underlying facts and procedural history.
We have reviewed the IJ’s decision as modified and
supplemented by the BIA. See Xue Hong Yang v. U.S. Dep't of Just.,
426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d
268, 271 (2d Cir. 2005). We find no abuse of discretion in the
IJ’s denial of a continuance or the BIA’s denial of Guerrero’s
motion to remand.
We review the denial of a continuance for an abuse of
discretion. See Sanusi v. Gonzales, 445 F.3d 193, 199 (2d Cir.
2006). An IJ abuses his discretion “if (1) his decision rests on
an error of law . . . or a clearly erroneous factual finding or
(2) his decision—though not necessarily the product of a legal
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error or a clearly erroneous factual finding—cannot be located
within the range of permissible decisions.” Morgan v. Gonzales,
445 F.3d 549, 551–52 (2d Cir. 2006) (alterations and internal
quotation marks omitted). Guerrero argues that the IJ abused his
discretion in declining to continue his removal proceedings in
order for him to await adjudication by U.S. Citizenship and
Immigration Services (“USCIS”) of his application for adjustment
of status. More specifically, he asserts that the agency failed
to consider the factors set forth in Matter of Hashmi, 24 I. & N.
Dec. 785 (B.I.A. 2009).
In considering whether to grant a continuance for a noncitizen
to apply for adjustment of status based upon a pending visa
petition, the agency considers:
(1) the . . . response to the motion; (2) whether the
underlying visa petition is prima facie approvable;
(3) the [movant’s] statutory eligibility for adjustment
of status; (4) whether the [movant’s] application for
adjustment merits a favorable exercise of discretion;
and (5) the reason for the continuance and other
procedural factors.
Matter of Rajah, 25 I. & N. Dec. 127, 130 (B.I.A. 2009) (quoting
Matter of Hashmi, 24 I. & N. Dec. at 790).
The IJ did not abuse his discretion in denying the
continuance. As an initial matter, Guerrero’s visa petition,
filed by his mother, was approved in 1997, so there was no pending
visa petition when he requested a continuance from the IJ and,
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moreover, Guerrero had also failed to apply for adjustment of
status notwithstanding his eligibility to do so. Therefore, the
Hashmi factors were not implicated, i.e., he could have filed his
application before the hearing. See Pedreros v. Keisler, 503 F.3d
162, 165 (2d Cir. 2007) (“[A]s a general matter, an alien is
entitled to a continuance of removal proceedings against him while
a prima facie approvable I-130 immigrant visa petition is pending
in front of [USCIS].” (emphasis added) (internal quotation marks
omitted)); see also Matter of Hashmi, 24 I. & N. Dec. at 790
(“[D]iscretion should be favorably exercised where a prima facie
approvable visa petition and adjustment application have been
submitted in the course of an ongoing removal hearing.” (emphasis
added)).
In any event, the record reflects that the IJ considered the
Hashmi factors. Counsel for the government asked to move forward
with removal proceedings, and the IJ noted that Guerrero was
eligible to apply for adjustment of status beginning in December
2017, several months before the hearing. As to whether Guerrero
would merit a favorable exercise of discretion on an application
to adjust, the IJ emphasized that Guerrero had not filed an
application with the immigration court or with USCIS. Finally,
regarding the reason for the continuance and other procedural
factors, the IJ observed that Guerrero’s counsel waited until the
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hearing to ask for a continuance; the IJ found this approach
“unacceptable” given the time the case had been pending. Joint
App’x at 125. In short, Guerrero has not shown an abuse of
discretion because the IJ’s analysis reflects proper consideration
of the Hashmi factors. See Morgan, 445 F.3d at 551–52.
The BIA also did not abuse its discretion in denying
Guerrero’s motion to remand. Li Yong Cao v. U.S. Dep’t of Just.,
421 F.3d 149, 157 (2d Cir. 2005) (“We review the BIA’s denial of
a motion to remand for consideration of new evidence for abuse of
discretion . . . .”). A motion to remand for consideration of new
evidence on appeal is subject to the same rules as a motion to
reopen, and the BIA may deny such a motion if the movant fails to
show prima facie eligibility for relief or where it determines
that the application would not be granted as a matter of
discretion. See INS v. Abudu, 485 U.S. 94, 104–05 (1988); Li Yong
Cao, 421 F.3d at 156. Motions to reopen “must be accompanied by
the appropriate application for relief and all supporting
documentation.” 8 C.F.R. § 1003.2(c)(1).
Guerrero submitted proof that he had filed an application to
adjust status with USCIS while his appeal was pending, but his
application was incomplete. In particular, the application
omitted required details of his criminal history, and Guerrero
failed to include the required affidavit of support. See 8 U.S.C.
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§§ 1182(a)(4)(A) (noncitizen is inadmissible if likely to become
a public charge), 1182(a)(4)(C)(ii) (requiring sponsor’s affidavit
for certain family-sponsored immigrants), 1255(a) (requiring
admissibility for adjustment); 8 C.F.R. § 213a.2(a) (requiring
exemption request absent affidavit of support). In light of the
fact that the regulations governing reopening require the
submission of the application and all supporting documentation,
the BIA did not abuse its discretion in declining to remand. See
8 C.F.R. § 1003.2(c)(1); Li Yong Cao, 421 F.3d at 156–57.
Because this finding is dispositive of the request to reopen
and remand, we need not reach the BIA’s alternative basis for
declining to reopen and remand—that Guerrero had not shown that he
warranted adjustment as a matter of discretion. See INS v.
Bagamasbad, 429 U.S. 24, 25 (1976) (per curiam) (“As a general
rule courts and agencies are not required to make findings on
issues the decision of which is unnecessary to the results they
reach.”). However, that alternative finding also provides a
dispositive basis for the denial of reopening. The BIA may “leap
ahead” over prima facie eligibility for relief and consider whether
adjustment would be warranted as a matter of discretion. See
Abudu, 485 U.S. at 105. Guerrero had the burden to show that he
would merit a favorable exercise of discretion, 8 U.S.C.
§ 1229a(c)(4), and his criminal history, which, as noted above, he
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did not explain, is an adverse factor in that analysis, see Wallace
v. Gonzales, 463 F.3d 135, 139 (2d Cir. 2006) (“Because the purpose
of adjustments of status is to provide worthy aliens with special
relief, we see no reason to prevent an IJ or the BIA from
considering an applicant’s anti-social conduct—whether leading to
a conviction . . . or no legal judgment whatsoever—as an adverse
factor in evaluating an application for discretionary relief.”).
For the foregoing reasons, the petition for review is DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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