Ivan Cadavedo v. Loretta Lynch , 835 F.3d 779 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-1914
IVAN MENDOZA CADAVEDO,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order of
the Board of Immigration Appeals.
No. A089 506 066
____________________
ARGUED MAY 24, 2016 — DECIDED AUGUST 31, 2016
____________________
Before ROVNER, SYKES, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Ivan Mendoza Cadavedo, a na-
tive of the Philippines, petitions for review of a Board of Im-
migration Appeals decision that affirmed an immigration
judge’s denial of his request for a continuance. At a 2014 hear-
ing, an immigration judge denied Cadavedo’s request for a
continuance to allow him to challenge a 2009 finding by
United States Citizenship and Immigration Services
(“USCIS”) that he had engaged in marriage fraud. That USCIS
2 No. 15-1914
finding bars him from obtaining adjustment of his status to
become a lawful permanent resident. We hold that there was
no abuse of discretion in denying Cadavedo’s request for a
continuance. Cadavedo made his request during the hearing
he sought to have continued, and his entitlement to the be-
lated relief he wanted to seek from USCIS is speculative at
best.
I. Background
This case revolves around Cadavedo’s past and possible
future attempts to adjust his immigration status to become a
lawful permanent resident. Unauthorized immigrants who
have an immigrant visa immediately available to them
(among other requirements) may apply to have their status
adjusted to that of lawful permanent resident. 8 U.S.C.
§ 1255(a). There are no numerical limits on visas for immedi-
ate relatives of United States citizens, including spouses, so a
visa is immediately available to such an immigrant. 8 U.S.C.
§ 1151(b)(2)(A)(i). To obtain this benefit, a United States citi-
zen may petition for recognition of her relative’s classification
as an immigrant entitled to a visa. 8 U.S.C. § 1154(a)(1)(A)(i);
8 C.F.R. § 204.1(a)(1). The immigrant may then apply for ad-
justment of status. See generally Matter of Hashmi, 24 I. & N.
Dec. 785, 789–90 (BIA 2009) (describing process for adjust-
ment of status). If an immigrant attempts to obtain adjustment
of status through a sham marriage, however, no future peti-
tion on behalf of that immigrant may be approved. 8 U.S.C.
§ 1154(c); see also 8 C.F.R. § 204.2(a)(1)(ii).
In 2007, Cadavedo sought to adjust his status through his
U.S. citizen wife. His wife filed an I-130 petition for recogni-
No. 15-1914 3
tion of Cadavedo as her spouse, and Cadavedo filed a corre-
sponding I-485 petition to adjust his status to lawful perma-
nent resident.
Immigration authorities interviewed the two to establish
whether their marriage was bona fide. In her interview, Ca-
davedo’s wife admitted that Cadavedo had promised to pay
her to marry him for immigration purposes. She gave a sworn
statement to USCIS and withdrew her I-130 petition. USCIS
denied Cadavedo’s I-485 petition to adjust his status. It noti-
fied Cadavedo that under 8 U.S.C. § 1154(c) it could not ap-
prove any future petitions on his behalf because he had en-
tered into a marriage for the purpose of evading the immigra-
tion laws. 1
In 2012, the Department of Homeland Security issued a
Notice to Appear to Cadavedo. The Notice to Appear charged
Cadavedo with removability based on overstaying his visa, 8
U.S.C. § 1227(a)(1)(B), working without authorization,
§ 1227(a)(1)(C)(i), and fraudulently attempting to adjust his
status through a spousal preference, §§ 1182(a)(6)(C)(i),
1227(a)(1)(A). On May 16, 2013, Cadavedo appeared before an
immigration judge and admitted all of the Attorney General’s
factual allegations except for his marriage fraud, which he de-
nied. The judge scheduled a hearing on the contested fraud
charge for October 17, 2013.
In the fall of 2013, Cadavedo retained new counsel. Ca-
davedo’s new counsel sought to continue the October 17, 2013
1 Manny Aguja represented Cadavedo in his attempt to adjust his sta-
tus, and Cadavedo worked for Aguja from 2004 to 2007. In 2012, attorney
Aguja pled guilty to conspiracy to commit marriage fraud by participating
in arranging fraudulent marriages for immigration purposes.
4 No. 15-1914
hearing to develop his defense against the fraud charges of
removability. The October 2013 federal government shut-
down had the effect of granting a delay of several months, al-
though the judge did not formally grant the continuance re-
quest.
On January 29, 2014, Cadavedo again appeared before the
immigration judge. The Attorney General’s witness for the
contested fraud charges did not appear for the hearing, so the
Attorney General dropped that charge and proceeded on the
other, uncontested grounds for removability. During the hear-
ing, Cadavedo sought a continuance to give him an oppor-
tunity to bring a collateral challenge to USCIS’s fraud finding
from 2009. Cadavedo told the judge he had a daughter who
was in the process of naturalizing, and he said he wanted to
seek adjustment of status through her.
The judge denied the request and ordered Cadavedo’s re-
moval on the uncontested grounds for removability. Ca-
davedo appealed the denial of the continuance to the Board
of Immigration Appeals. The Board affirmed the judge’s deci-
sion. It applied its precedent, Hashmi, 24 I. & N. Dec. at 790–
92, and concluded that Cadavedo had failed to demonstrate
good cause to continue his proceedings. The relief Cadavedo
wanted to seek from USCIS was untimely, and his entitlement
to receive it was speculative at best. The Board also found no
deprivation of Cadavedo’s due process rights.
II. Analysis
A. Scope of Jurisdiction
We have jurisdiction to review Cadavedo’s final order of
removal under 8 U.S.C. § 1252(a)(1). This includes jurisdiction
No. 15-1914 5
to review whether the Board erred in affirming the immigra-
tion judge’s denial of a continuance along the way to reaching
that final order. Calma v. Holder, 663 F.3d 868, 873 (7th Cir.
2011). Due to the limits on our jurisdiction under 8 U.S.C.
§ 1252(a)(2)(B)(i), we have jurisdiction to review the denial of
the motion to continue unless “the agency’s rationale for
denying the procedural request also establishes the peti-
tioner’s inability to prevail on the merits of his underlying
claim” for adjustment of status. Calma, 663 F.3d at 876. Our
jurisdiction extends to review of the denial of a continuance
“that is sought for purposes of allowing another agency to
complete its review.” Id. at 877. Cadavedo sought a continu-
ance to ask another agency to reconsider its previous deter-
mination rather than to complete its review, but we are satis-
fied that we have jurisdiction to hear that claim.
B. Denial of Continuance
We review the Board’s and judge’s decision to deny a con-
tinuance for abuse of discretion. Calma, 663 F.3d at 870. We
will not overturn the decision “unless it was made without a
rational explanation, inexplicably departed from established
policies, or rested on an impermissible basis such as invidious
discrimination against a particular race or group.” Id. at 878
(citation and internal quotation marks omitted). “Where, as
here, the [Board] agrees with the [immigration judge’s] deci-
sion but supplements his reasoning, we review the [judge’s]
decision as supplemented by the [Board].” Pawlowska v.
Holder, 623 F.3d 1138, 1141 (7th Cir. 2010).
An immigration judge may grant a continuance “for good
cause shown.” 8 C.F.R. § 1003.29. In evaluating whether the
circumstances warrant a continuance to pursue an I-130 peti-
tion, the Board and judges presume that “discretion should
6 No. 15-1914
be favorably exercised where a prima facie approvable visa
petition and adjustment application have been submitted in
the course of an ongoing removal hearing.” Hashmi, 24 I. & N.
Dec. at 790. The “focus of the inquiry is the apparent ultimate
likelihood of success on the adjustment application.” Id. And
the Board and judges also consider: “(1) the DHS response to
the motion; (2) whether the underlying visa petition is prima
facie approvable; (3) the respondent’s statutory eligibility for
adjustment of status; (4) whether the respondent’s application
for adjustment merits a favorable exercise of discretion; and
(5) the reason for the continuance and other procedural fac-
tors.” Id.
The Board and judge did not abuse their discretion here.
Cadavedo’s visa petition was not “prima facie approvable”
due to the USCIS finding in 2009 that Cadavedo had engaged
in marriage fraud. See 8 U.S.C. § 1154(c); 8 C.F.R.
§ 204.2(a)(1)(ii). We agree with the Board and judge that Ca-
davedo’s “apparent ultimate likelihood of success on the ad-
justment application” was at best speculative due to the fraud
bar. Hashmi, 24 I. & N. Dec. at 790. 2
Nothing in the record indicates that Cadavedo had a solid
case to overturn the fraud bar. In his brief, Cadavedo also
acknowledges that the possibility that USCIS would agree to
to entertain an appeal more than six years late was “nil.” The
2 At oral argument, Cadavedo’s counsel represented that Cadavedo
has obtained an approved I-130 petition. Cadavedo’s briefing does not
mention this and we have not received any written updates from Ca-
davedo. Absent information to the contrary, we assume USCIS continues
to maintain its fraud bar against Cadavedo. In any case, we review the
Board’s and immigration judge’s use of their discretion, so our review fo-
cuses on the information they had when making their decisions.
No. 15-1914 7
Board and judge did not abuse their discretion by denying
Cadavedo’s continuance request on these grounds. See Souley
v. Holder, 779 F.3d 720, 723 (7th Cir. 2015) (no abuse of discre-
tion in denying motion to continue to allow petitioner’s wife
to file second I-130 petition after first one was denied); Calma,
663 F.3d at 878 (“sound reason” existed for denying continu-
ance when adjustment of status was speculative and, if suc-
cessful, would occur far into the future). 3
The judge also properly considered “the reason for the
continuance and other procedural factors.” Hashmi, 24 I. & N.
Dec. at 790. Cadavedo requested the continuance during a
hearing and after he had received a de facto three-month con-
tinuance due to the 2013 government shutdown. Nothing in
the record suggests that Cadavedo informed the Board or im-
migration judge of any action he took to contest the fraud bar
and obtain an approved I-130 petition during his de facto
three-month continuance. Nor is there any indication that he
did so during the years between USCIS’s notification that it
had imposed the fraud bar and the 2014 hearing before the
immigration judge.
3 Cadavedo asserts that the Board erred in identifying the daughter
through whom he wished to have his status adjusted. The Board identified
the daughter as the one who was in removal proceedings at the same time
as Cadavedo, but he said he intended to seek adjustment of status through
a daughter who he says is currently a legal permanent resident in the pro-
cess of naturalizing. As the Attorney General acknowledges, the Board
erred, but that error was harmless: Cadavedo did not claim that his daugh-
ter had been naturalized, only that she was applying for it, and the fraud
bar would prevent Cadavedo from adjusting his status through any rela-
tive. See Calma, 663 F.3d at 878 (harmless error analysis applies).
8 No. 15-1914
Cadavedo argues that the Board abused its discretion be-
cause it failed to consider the factors for granting a continu-
ance the Ninth Circuit identified in Baires v. INS, 856 F.2d 89
(9th Cir. 1988). But the Board properly applied the factors
from Hashmi, 24 I. & N. Dec. at 790. As we have repeatedly
recognized, that was the correct legal standard for the Board
to apply. See Adame v. Holder, 762 F.3d 667, 672–73 (7th Cir.
2014); Aimin Yang v. Holder, 760 F.3d 660, 666 (7th Cir. 2014);
Calma, 663 F.3d at 872. The Board did not abuse its discretion
here in affirming the immigration judge’s denial of the request
for a continuance to seek speculative relief from USCIS’s fraud
bar. 4
C. Due Process
Cadavedo also argues that the immigration judge’s deci-
sion not to hold a contested hearing on the fraud charge of
removability deprived him of his due process rights by pre-
venting him from challenging the fraud finding in the immi-
gration court. Cadavedo, of course, has a constitutional right
to removal proceedings that satisfy the requirements of due
process. See Reno v. Flores, 507 U.S. 292, 306 (1993). But Ca-
davedo does not have a due process right to seek relief from
removal that is purely discretionary, such as adjustment of
status, because he has no protected liberty interest in obtain-
ing such relief. Hamdan v. Gonzales, 425 F.3d 1051, 1061 (7th
Cir. 2005); see also Adame, 762 F.3d at 670. Cadavedo also has
not demonstrated that the immigration judge’s refusal to let
4 To whatever extent Cadavedo seeks review of the Board’s decision
to deny him administrative closure, the Board did not abuse its discretion
in denying that request for the same reasons stated in this section. See Va-
hora v. Holder, 626 F.3d 907, 919 (7th Cir. 2010) (court of appeals has juris-
diction to review denial of administrative closure for abuse of discretion).
No. 15-1914 9
him challenge the fraud bar prejudiced him. See Souley, 779
F.3d at 724 (no due process problem because no prejudice
from denial of continuance).
In any case, Cadavedo had sufficient process available to
him to challenge the fraud bar. As the Attorney General
points out, Cadavedo could have moved for reconsideration
of USCIS’s denial of his petition for adjustment of status and
challenged the bar that way. 8 C.F.R. § 103.5(a)(1)(i). Presum-
ably, if Cadavedo could have demonstrated ineffective assis-
tance of counsel in his original petition for adjustment of sta-
tus, that could provide good reason for USCIS to reconsider
its decision. If Cadavedo had taken steps to obtain an ap-
proved I-130 petition during his administrative proceedings,
he could have asked immigration authorities to reconsider
their denial of a continuance on the basis of that new infor-
mation. 8 C.F.R. § 1003.2 (motion to reopen before Board); 8
C.F.R. § 1003.23 (motion to reopen before immigration judge);
Matter of Coelho, 20 I. & N. Dec. 464, 471–72 (BIA 1992) (de-
scribing motion to remand to immigration judge). The immi-
gration laws and regulations accorded Cadavedo sufficient
process.
The petition for review of the Board’s decision is DENIED.