Ali, Mir A. v. Gonzales, Alberto , 179 F. App'x 951 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 18, 2006
Decided May 3, 2006
Before
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-1338
MIR A. ALI, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals
v. No. A74-311-935
ALBERTO R. GONZALES,
Respondent.
ORDER
Mir Ali appeared before an immigration judge (“IJ”) to address the charge of
being removable as an alien who attempted to obtain a visa though marriage fraud.
He requested a continuance (the eighth time he had done so), stating that his wife
was unable to attend the hearing to testify on his behalf. The IJ denied Ali’s
request and subsequently found him removable; the Board of Immigration Appeals
(“BIA”) affirmed. Ali now petitions this court to review the IJ’s denial of his request
for the continuance, but because his claim is moot we dismiss the petition.
I. Background
Ali, a native and citizen of India, entered the United States in 1995. Shortly
thereafter he married Jaton Nance, a United States citizen. Nance filed an
immediate relative visa petition (an I-130) on Ali’s behalf, which was denied. Nance
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then appealed this denial to the BIA, and while her appeal was pending, the
Immigration and Naturalization Service (“INS”) commenced removal proceedings
against Ali, charging him with being removable for, among other reasons,
attempting to obtain a visa through marriage fraud, 8 U.S.C. § 1182(a)(6)(C)(i).
Although Ali first appeared before an IJ in April 1999 to address this charge,
a merits hearing would not be held for five years because of his multiple requests
for continuances. From April 1999 through December 2002, Ali requested and
received five continuances. Then, in December 2002 Ali informed the IJ that the
BIA had affirmed the denial of his wife’s I-130 petition, and that recently he had
been indicted for food-stamp fraud. Because Ali stated that he would seek
voluntary departure, he requested and received a sixth continuance to allow the
food-stamp fraud prosecution to “play out” because of its effect on his eligibility for
voluntary departure.
The IJ finally held a merits hearing in March 2004 after denying Ali’s
seventh request for a continuance. Ali alone testified that he and Nance had a bona
fide marriage. He added, however, that Nance was unable to testify that day
because she was in a hospital, having fallen ill with “sickle-cell cancer.” In
response, the government introduced a report compiled during its investigation of
Ali’s I-130 petition showing that Ali paid Nance to marry him and petition the INS
to adjust his immigration status.
At the close of the hearing, Ali requested yet another continuance—his eighth
request—to enable him to obtain an affidavit from Nance, purportedly to
corroborate his claim that the marriage was legitimate. The IJ denied Ali’s request,
noting the numerous continuances he had granted over the previous five years and
stating that Ali provided no evidence substantiating that Nance suffered from an
illness. He then rendered his decision, denying Ali’s request for voluntary
departure and ordering him removed from the United States. In reaching this
decision, the IJ relied on the government’s investigative report presenting extensive
evidence which showed that Ali’s and Nance’s marriage was a sham, and that Ali
actually had another “common-law wife” with whom he fathered two children. Ali
appealed to the BIA, which affirmed both the IJ’s denial of Ali’s motion for a
continuance and request for voluntary departure.
II. Discussion
In his petition for review, Ali argues that the IJ’s denial of a continuance
deprived him of the opportunity to present evidence from Nance corroborating that
they had a legitimate marriage. However, we lack jurisdiction to review this
argument on grounds of both mootness and the jurisdictional bar outlined in
8 U.S.C. § 1252(a)(2)(B). Although neither party addressed these issues in their
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briefs, we always have the authority to examine sua sponte issues of jurisdiction,
see Wernsing v. Thompson, 423 F.3d 732, 746 (7th Cir. 2005), including mootness,
see Worldwide St. Preachers’ Fellowship v. Peterson, 388 F.3d 555, 558 (7th Cir.
2004).
A. Mootness
Ali’s challenge to the IJ’s denial of his motion for continuance is rendered
moot by the dismissal of Nance’s I-130 petition. Notwithstanding any statutory
grant of jurisdiction, our authority for appellate review is limited to live cases or
controversies, and under Article III “‘federal courts do not have jurisdiction to
review moot cases.’” Maher v. FDIC, 441 F.3d 522, 525 (7th Cir. 2006) (quoting
Buckley v. Archer-Daniels-Midland Co., 111 F.3d 524, 526 (7th Cir. 1997)). The
case or controversy must exist at all stages of review, including appeal. See
Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997); Church of
Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992). We recently held in
Qureshi v. Gonzales, 442 F.3d 985 (7th Cir. 2006), that the portion of an alien’s
petition challenging the denial of his motion for continuance of removal proceedings
pending the adjudication of his wife’s I-130 petition was rendered moot by the
agency’s dismissal of his wife’s petition. We reasoned that “[e]ven if [petitioner]
were to prevail on his challenge to the continuance denial, the relief requested,
within our power to grant, is a remand to the IJ pending adjudication of the I-130
petition.” Id. at 988. But because the petition was denied, “[a] remand now would
effectuate no change in the case; [petitioner’s] basis for a continuance no longer
exists and the IJ, proceeding with his earlier analysis, would simply order
[petitioner] removed from the United States.” Id.As in Qureshi, the relief that Ali requests—a remand of his case “for further
proceedings”—is ineffectual. Ali does not appeal the IJ’s denial of voluntary
departure, so the completion of his food-stamp fraud prosecution no longer bears
upon the issue of relief. Ali’s counsel admitted as much when he stated at oral
argument that the case “is moot in the sense of continuing further in court for
seeking any relief.” We have no “power to decide questions that cannot affect the
rights of litigants in the case before them.” Id. (citing North Carolina v. Rice,
404 U.S. 244, 246 (1971)). Because we are unable to grant relief affecting Ali’s legal
rights, his claim is no longer a live case or controversy, id., and we accordingly
dismiss his petition as moot.
B. Jurisdictional Bar Under 8 U.S.C. § 1252(a)(2)(B)
Alternatively, 8 U.S.C. § 1252(a)(2)(B) strips us of jurisdiction to review Ali’s
request for a continuance. We, along with our sister circuits, have held on a
number of occasions that 8 U.S.C. § 1252(a)(2)(B) deprives us of jurisdiction to
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review an IJ’s discretionary ruling, see 8 U.S.C. § 1252(a)(2)(B)(ii); Vasile v.
Gonzales, 417 F.3d 766, 768 (7th Cir. 2005) (“Notwithstanding [the REAL ID]
Act . . . discretionary or factual determinations continue to fall outside the
jurisdiction of the court of appeals entertaining a petition for review.”); see also
Ramadan v. Gonzales, 427 F.3d 1218, 1222 & n.6 (9th Cir. 2005), such as a decision
to deny a continuance, Benslimane v. Gonzales, 430 F.3d 828, 832 (7th Cir. 2005);
Subhan v. Ashcroft, 383 F.3d 591, 595 (7th Cir. 2004); see also Saloum v. United
States Citizenship & Immigration Servs., 437 F.3d 238, 242 (2d Cir. 2006); Grass v.
Gonzales, 418 F.3d 876, 879 (8th Cir. 2005); Yerkovich v. Ashcroft, 381 F.3d 990, 995
(10th Cir. 2004).
We have, however, carved out a very limited exception to the jurisdictional
bar. In Subhan v. Ashcroft and Benslimane v. Gonzales, this court held that the
denial of a discretionary continuance is reviewable when the decision has the effect
of a substantive ruling on the alien’s potentially meritorious application to adjust
his status. Benslimane, 430 F.3d at 832; Subhan, 383 F.3d at 595-96. The IJs in
those cases denied the petitioners’ motions for continuance on the basis that the
agency—by no fault of the petitioners—had not yet acted on their petitions for
adjustment. Benslimane, 430 F.3d at 830-31; Subhan, 383 F.3d at 593-94. Because
the petitions were pending when the IJs ordered the petitioners removed, we
determined that the IJs’ denials of continuance effectively constituted substantive
rulings on the merits of the petitions. Benslimane, 430 F.3d at 832; Subhan,
383 F.3d at 595-96.
However, the exception in Subhan and Benslimane does not apply to this
case. Here the IJ’s denial of a continuance had no bearing on Ali’s I-130 petition
because that petition was denied before the IJ found Ali removable; in contrast, in
both Subhan and Benslimane, the petitioners’ I-130 petitions were still pending
when the IJs rejected their requests for continuances. See Benslimane, 430 F.3d at
832; Subhan, 383 F.3d at 595-96. The IJ’s denial of Ali’s request for a continuance
thus did not have the effect of a substantive ruling on Ali’s I-130 petition, and we
accordingly lack jurisdiction to review that denial.
Because we lack jurisdiction over Ali’s appeal, we DISMISS his petition for
review.