Gurinderpal Setia v. Eric Holder, Jr. , 589 F. App'x 347 ( 2014 )

FILED
NOT FOR PUBLICATION DEC 31 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GURINDERPAL SINGH SETIA; No. 11-71390
MANMEET KAUR SETIA; HARDEEP
SINGH SETIA; HARPREET SINGH G Agency Nos. A097-125-559
SETIA, A097-125-560
A097-125-561
Petitioners, A097-125-562
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 9, 2014
Resubmitted December 19, 2014
San Francisco, California
Before: O’SCANNLAIN, FISHER, and HURWITZ, Circuit Judges.
Gurinderpal Singh Setia petitions for review from the BIA’s dismissal of his
appeal from the denial of his application for asylum by an immigration judge (IJ). We
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
grant the petition in part, deny in part, and remand.
1. We deny the petition insofar as it attacks the merits of the denial of
asylum. The IJ’s adverse credibility finding was properly supported by detailed
findings. See De Leon-Barrios v. INS, 116 F.3d 391, 394 (9th Cir. 1997). Moreover,
substantial evidence supports the IJ’s determination that Setia was not mistreated
because of his political opinion. See INS v. Elias-Zacarias, 502 U.S. 478, 483-84
(1992).
2. A remand is required, however, for further consideration of Setia’s
motion for a continuance. An immigration judge “may grant a motion for continuance
for good cause shown.” 8 C.F.R. § 1003.29. The IJ denied Setia’s request for a
second continuance because “this case has been pending . . . almost three years,” “it
is not clear that [Setia’s I-140 visa] priority date will be current anytime soon,” and
Setia’s “accrued illegal presence.”
3. The BIA affirmed. Its sole ground for doing so was that, because Setia
“does not have an immediately available immigrant visa, he is not prima facie eligible
for adjustment of status.” To the contrary, Setia was “not required to show prima
facie eligibility for adjustment of status to demonstrate ‘good cause’ for a
continuance.” Ahmed v. Holder, 569 F.3d 1009, 1015 (9th Cir. 2009). Given the
BIA’s sole reliance on this ground for affirming the denial of the continuance, we
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remand to allow the agency to consider the factors outlined in our case law and its
prior decisions relating to continuance motions. See id. at 1012-15; Matter of Rajah,
25 I. & N. Dec. 127, 135-36 (BIA 2009).
DENIED IN PART, GRANTED IN PART, AND REMANDED. Each party
shall bear its own costs.
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FILED
Setia v. Holder, No. 11-71390 DEC 31 2014
MOLLY C. DWYER, CLERK
O’Scannlain, Circuit Judge, dissenting in part: U.S. COURT OF APPEALS
An alien is prima facie qualified for an adjustment of status if he is eligible
to receive an immigrant visa and is admissible to the United States for permanent
residence—and—such visa is immediately available at the time of the filing of the
application. 8 U.S.C. § 1255(i)(2). While an alien is not “required” to show prima
facie eligibility to merit a continuance, see Ahmed v. Holder, 569 F.3d 1009, 1015
(9th Cir. 2009), an Immigration Judge may consider lack of immediate visa
availability when exercising his discretion to determine whether a continuance is
appropriate in that particular case. See In re Hashmi, 24 I. & N. 785, 790 (BIA
2009); see also In re Rajah, 25 I. & N. Dec. 127, 136 (BIA 2009) (“A respondent
who has a prima facie approvable I-140 and adjustment application may not be
able to show good cause for a continuance because visa availability is too
remote.”). Thus, I would deny the petition in full.