Bhikhabhai Patel v. Attorney General United States , 523 F. App'x 193 ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-1410
___________
BHIKHABHAI S. PATEL,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A088-680-340)
Immigration Judge: Honorable Steven Morley
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 3, 2013
Before: FUENTES, HARDIMAN and VAN ANTWERPEN, Circuit Judges
(Opinion filed: July 10, 2013)
___________
OPINION
___________
PER CURIAM
Bhikhabhai Patel seeks review of a final order of the Board of Immigration
Appeals (“BIA”). For the following reasons, we will deny the petition for review.
Patel, a citizen of India, arrived in the United States sometime in 2002 or 2003. In
2010, removal proceedings were initiated against him pursuant to INA § 212(a)(6)(A)(i),
8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the United States without being
admitted or paroled. In September 2011, Patel, through counsel, conceded to the
Immigration Judge (“IJ”) that he was removable and not eligible for cancellation,
adjustment of status, or asylum. However, he moved for a continuance based on a June
2011 policy memorandum by ICE Director John Morton (“Morton Memo”), which
provides “guidance on the exercise of prosecutorial discretion to ensure that the agency‟s
immigration enforcement resources are focused on the agency‟s enforcement priorities.”
Patel argued that he should be granted a continuance to await implementation of the
policy and determine whether it entitled him to some form of relief. The IJ denied Patel‟s
motion, finding his argument regarding potential relief pursuant to the Morton Memo too
speculative, and ordered him removed to India. Patel appealed, arguing that the IJ abused
his discretion in denying a continuance. The BIA dismissed the appeal, finding no abuse
of discretion. Patel thereafter filed a timely, counseled petition for review in this Court.
We have jurisdiction under INA § 242(a)(1), 8 U.S.C. § 1252(a)(1). An IJ may
“grant a motion for continuance for good cause shown.” 8 C.F.R. § 1003.29. An IJ‟s
refusal to grant a continuance is reviewed for abuse of discretion, Khan v. Att‟y Gen.,
448 F.3d 226, 233 (3d Cir. 2006), and will be overturned only if the decision is arbitrary,
irrational, or contrary to law, see Hashmi v. Att‟y Gen., 531 F.3d 256, 259 (3d Cir. 2008).
“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
2
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) (internal quotation
marks and citation omitted).
We agree with the BIA that the denial of Patel‟s motion for a continuance was not
an abuse of the IJ‟s discretion. Patel‟s argument regarding potential relief pursuant to the
Morton Memo was speculative and could have led to an indefinite delay in the
proceedings. See Contreras v. Att‟y Gen., 665 F.3d 578, 587 (3d Cir. 2012) (“An IJ has
no obligation to grant a continuance that would be essentially „indefinite‟ if there is „only
the speculative possibility that at some point in the future‟ the alien‟s labor certification
application will be approved.”) (quoting Khan, 448 F.3d at 235). Although Patel asserts
that he had “a very fair chance of prosecutorial discretion,” he provided no facts or
evidence in support of that assertion. He also failed to explain why a continuance of the
removal proceedings was necessary to obtain the benefit of ICE‟s new internal policies
regarding the exercise of prosecutorial discretion. See Memorandum from John Morton,
Dir., U.S. Immigration & Customs Enforcement, to All Field Office Directors et al.,
Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement
Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens at 3
(June 17, 2011), http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-
discretion-memo.pdf (ICE attorneys may exercise prosecutorial discretion at any stage of
the removal proceedings, including during administrative and judicial appeals); see also
Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 483-85 (1999).
Finally, to the extent Patel argues that the denial of his continuance request violated his
3
Fifth Amendment due process rights, he fails to establish that the IJ or BIA prevented
him from presenting his case or that he suffered prejudice as a result. See Khan, 448 F.3d
at 235-36.
Accordingly, the petition for review will be denied.
4