Hashmi v. Attorney General of U.S.

• Decision Date: 07 July 2008
• Docket Number: No. 06-3934.,06-3934.
• Citation: 531 F.3d 256
• Parties: Ajmal Hussain Shah HASHMI, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

531 F.3d 256

Ajmal Hussain Shah HASHMI, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent.

No. 06-3934.

United States Court of Appeals, Third Circuit.

Argued January 8, 2008.

Opinion Filed: July 7, 2008.

Regis Fernandez, [Argued], Newark, NJ, for Petitioner Ajmal Hussain Shah Hashmi.

Christina B. Parascandola, [Argued], Richard M. Evans, Joan E. Smiley, Allen W. Hausman, United States Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent, Michael B. Mukasey, United States Attorney General.

Before: FUENTES, JORDAN, Circuit Judges, and DITTER,^* District Judge.

OPINION

FUENTES, Circuit Judge.

Petitioner Ajmal Hussain Shah Hashmi's removal proceedings were adjourned on multiple occasions while he awaited adjudication of his pending I-130 application (a claim for residency based on his marriage to a United States citizen). After eighteen months had elapsed, the Immigration Judge ("IJ") denied a further continuance — despite the government's consent — because the case had been pending far longer than the eight-month period suggested by the "case-completion goals" set by the Department of Justice ("DOJ") for this type of case. In our view, the IJ's denial of a motion for a continuance based on case-completion goals rather than on the facts and circumstances of Hashmi's case was arbitrary and an abuse of discretion. Accordingly, we grant Hashmi's petition for review.

I.

Hashmi is a native and citizen of Pakistan. He has testified that he was previously married in his home country and that the marriage ended in divorce. He entered the United States on October 22, 2000, on a six-month tourist visa, which he overstayed. The following year, Hashmi married a United States citizen, who filed an I-130 petition on his behalf. The government contends that the petition "shows no prior husband or wife"; however, Hashmi submitted the divorce decree for his prior marriage during the I-130 application process and insists that he never intended to conceal the prior marriage. (App.70.)

Hashmi was served on July 30, 2003 with a Notice to Appear for overstaying his visa. On September 25, 2003, at his first court hearing on the removal charges, Hashmi admitted the allegations and conceded both charges;¹ he also notified the court of the pending I-130 petition and his intention to seek adjustment of status. Since that initial hearing, Hashmi has been mired in a bureaucratic morass caused by the government's failure to ensure that necessary information about his case has been available to both those adjudicating his removal proceedings and those adjudicating his I-130 petition, which are taking place on parallel tracks within the Department of Homeland Security ("DHS").

On November 25, 2003, Hashmi and his wife appeared for a hearing before Citizen and Immigration Services ("CIS") in Cherry Hill, New Jersey, regarding the I-130 petition. In light of the CIS hearing and the pending I-130 petition, the IJ granted Hashmi three additional adjournments of his removal proceedings over a period of approximately 18 months. At a May 24, 2004 hearing, the government represented that CIS believed that one of the documents provided by Hashmi in connection with the I-130 petition had been "altered," and that the document had been "sent out for authentication." (App. 65-66.) At an August 26, 2004 hearing, the government clarified that a "questionable document was sent overseas" for investigation, and that CIS had not made a final ruling as to its authenticity. (App.75.) It has since become apparent that the document at issue is the decree that allegedly demonstrates that Hashmi's prior marriage in Pakistan ended in divorce.

In a letter sent to the IJ a few days prior to a March 29, 2005 hearing, Hashmi's attorney explained that Hashmi was stuck in a "`[C]atch[-]22.'" (App.85.) Not only had the divorce decree not yet been authenticated, but a portion of Hashmi's file — the "A" file² — had been sent by the CIS office in Cherry Hill, New Jersey, to the government attorney who was handling Hashmi's removal proceedings in Newark, New Jersey. The CIS office informed Hashmi's attorney that it could not proceed without the "A" file, but that the government attorney who had the file in his possession did not want to return it until removal proceedings were complete. Hashmi's counsel thus requested an adjournment so that the "A" file could be returned to Cherry Hill.

At the hearing before the IJ on March 29, 2005, Hashmi's attorney reiterated to the IJ that the divorce decree had not been authenticated and that CIS did not have the "A" file; as a result, Hashmi's I-130 petition had still not been adjudicated. Hashmi's attorney then requested a six-month adjournment, which the government did not oppose. The IJ, however, chose to deny the continuance, and delivered an oral decision finding Hashmi removable to Pakistan because, as Hashmi admitted during his initial plea, he had overstayed his visa and failed to appear for special registration. The IJ stated that it was his obligation to complete cases "within a reasonable period of time." (App.46.) Referencing the DOJ's case-completion goals, which are not mandatory but serve as a guideline to assist IJs in managing their calendars, the IJ noted that the case-completion goal for this case type was about 8 months, and that — due to the multiple adjournments — the case had already been pending for a year and a half. The IJ further observed that Hashmi could cite to no law stating that an immigration judge must indefinitely postpone removal proceedings for a pending I-130 petition.

The Board of Immigration Appeals ("BIA") adopted and affirmed the IJ's decision. It stated that an IJ's discretionary denial of a continuance would not be overturned absent a showing of actual prejudice or a showing that the outcome of the proceedings would be "materially affected." (App.2.) It also asserted that

although [Hashmi] faults the Department of Homeland Security (DHS) for the delay in adjudicating the I-130 petition, the transcript reflects that adjudication was delayed because there were issues raised regarding an undisclosed prior marriage and the authenticity of respondent's divorce decree, which document the DHS has sent overseas, and has been awaiting, for verification.

(App.2.)

Hashmi filed a timely petition for review.³ We have jurisdiction pursuant to 8 U.S.C. § 1252.

II.

Where, as here, the BIA adopts and affirms the decision of the IJ, as well as provides its own reasoning for its decision, the Court reviews both the decisions of the IJ and the BIA. See He Chun Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). An IJ may "grant a motion for continuance for good cause shown." 8 C.F.R. § 1003.29. This Court has jurisdiction to review an IJ's decision to deny a continuance, and does so for abuse of discretion. See Khan v. Att'y Gen., 448 F.3d 226, 233 (3d Cir.2006); Ponce-Leiva v. Ashcroft, 331 F.3d 369, 377 (3d Cir.2003). An IJ's decision should be reversed as an abuse of discretion only if it is arbitrary, irrational or contrary to law. See Tipu v. INS, 20 F.3d 580, 582 (3d Cir.1994). In Ponce-Leiva, this Court further explained that "`[t]he 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 must be resolved on a case by case basis according to the facts and circumstances of each case.'" 331 F.3d at 377 (quoting Baires v. INS, 856 F.2d 89, 91 (9th Cir.1988)).

III.

We turn first to the decision rendered by the IJ, and we conclude that the IJ abused his discretion when he denied Hashmi's motion for a continuance based solely on concerns about the amount of time required to resolve Hashmi's case.

Hashmi's principal argument is that this case is distinguishable from Khan a recent case addressing a similar set of circumstances.⁴ In Khan, petitioner's wife had applied for a Labor Certification ("Certification") pursuant to 8 U.S.C. § 1255(i). 448 F.3d at 229. If the application were granted, petitioner's wife would be designated a legal permanent resident alien, and petitioner (as her spouse) would be eligible to apply for adjustment of status. See id. At petitioner's removal hearing, petitioner conceded removability and requested a continuance pending the outcome of the Certification application; petitioner's counsel advised the IJ that it usually took about 45 days to get a ruling on a Certification. See id. The IJ observed that because the Certification was merely pending, and petitioner was not yet eligible to file a visa petition, petitioner was not prima facie eligible to adjust his status. See id. As a result, the IJ denied the continuance, ruling that it would be inappropriate to grant an adjournment of these proceedings given the lack of prima facie eligibility. See id.

We denied the petition, ruling that the IJ's decision to deny the continuance was not an abuse of discretion. We noted that "any continuance would be indefinite" and that the petitioner offered "only the speculative possibility that at some point in the future" his wife could receive a Certification. Id. at 235 (citation and internal quotation marks omitted). We also approved of the IJ's observation that, because the Certification was pending, the petitioner had not yet submitted the visa petition, which was ultimately the document that would allow petitioner to adjust his status. See id.

We agree with Hashmi's contention that this case is distinguishable from Khan. Hashmi is not potentially eligible to apply for a status adjustment. It appears that he is eligible. He has already filed his I-130 petition, and is in the process of having the petition adjudicated. In addition, our concern in Khan that any grant of a continuance would be "indefinite" is not implicated here. Id. at 235. It is evident from the record that CIS had not proceeded with the...