Pede, Rudite v. Gonzales, Alberto ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1897
RUDITE PEDE,
Petitioner,
v.
ALBERTO R. GONZALES,
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals
No. A75-822-118
____________
ARGUED JANUARY 4, 2006—DECIDED MARCH 24, 2006
____________
Before POSNER, EVANS, and WILLIAMS, Circuit Judges.
EVANS, Circuit Judge. Soon after arriving in the United
States from Latvia in 1997, Rudite Pede married Alexander
Mishulovich, a United States citizen, and applied for
adjustment of status. But several things stood in the way of
her becoming a permanent resident. She obtained her visa
for entry into this country by fraud and she presented a
phony passport in the name of Dace Mediniece upon arrival.
Also, not to skip an unusual detail, her husband
(Mishulovich) was a sex-slave trafficker (Latvian women
imported to work as “dancers” in Chicago nightclubs) with
whom Pede was in cahoots.
In 1999, Pede was convicted in federal district court
of conspiracy to commit visa fraud (18 U.S.C. §§ 371,
2 No. 05-1897
1546, and 2) and four counts of visa fraud for causing
women in Latvia to use false visas for entry into the United
States (18 U.S.C. §§ 2, 1546). Mishulovich was convicted of
these and additional crimes as part of the same scheme,
including bringing several Latvian women into the United
States and holding them in involuntary servitude.
Upon her conviction, Pede spent 9 months in prison and
was placed in removal proceedings. Given her conviction
and the fact that she wasn’t seeking any form of relief from
deportation, the proceeding would have been over quickly
except for one thing—Pede and Mishulovich moved to
reopen her earlier adjustment of status hearing (one she
missed in 1998) and the government had not gotten around
to deciding the motion. The general practice under such
circumstances is to stay the removal proceedings, see Matter
of Garcia, 16 I. & N. Dec. 653, 656-57 (BIA 1978); Hassan
v. INS, 110 F.3d 490, 492 (7th Cir. 1997), and that’s what
happened here—at least half a dozen times between
November 1999 and January 2004. Finally, the immigration
judge (“IJ”) decided that there was no sense in waiting any
longer. Even if the motion to reopen was granted, the IJ
reasoned, there was no way Pede could convince the
government to overlook her fraud conviction and grant her
request for adjustment of status. Refusing to allow another
continuance, the IJ ordered Pede removed.
Pede now argues that, by refusing to continue her case,
the IJ denied her the right to have her request for adjust-
ment properly adjudicated. She points out that we deemed
such a refusal unacceptable in Subhan v. Ashcroft, 383 F.3d
591, 594-95 (7th Cir. 2004). See also Benslimane v. Gonza-
les, 430 F.3d 828, 832 (7th Cir. 2005) (“An immigration
judge cannot be permitted, by arbitrarily denying a motion
for a continuance without which the alien cannot establish
a ground on which Congress has determined that he is
eligible to seek to remain in this country, to thwart the
congressional design.”) (citations omitted). But in Subhan
the IJ gave no reason for denying the continuance; here, the
No. 05-1897 3
reason was clearly spelled out—the ultimate hopelessness
of Pede’s adjustment application. That’s a perfectly accept-
able basis for the IJ’s exercise of discretion. See Garcia,
16 I. & N. Dec. at 656-57 (“It clearly would not be an abuse
of discretion for the immigration judge to summarily deny
a request for a continuance . . . upon his determination that
the visa petition is frivolous or that the adjustment applica-
tion would be denied on statutory grounds or in the exercise
of discretion notwithstanding the approval of the petition.”).
Pede also argues that the IJ improperly failed to notify
her of her eligibility to apply for voluntary departure,
withholding of removal, or protection under the Convention
Against Torture. See 8 C.F.R. § 1240.11(a)(2) (“The immi-
gration judge shall inform the alien of his or her apparent
eligibility to apply for any of the benefits enumerated in
this chapter and shall afford the alien an opportunity to
make application during the hearing.”); Asani v. INS,
154 F.3d 719, 727 (7th Cir. 1998). She does not argue,
however, that she is in fact eligible for any of those forms of
relief. The IJ made a preliminary finding that she was not,
and Pede’s attorney made no objection. There is no harm in
failing to notify an alien of relief for which she is ineligible.
The petition for review is DENIED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-24-06