Ahmed v. Holder

Citation569 F.3d 1009
Decision Date24 June 2009
Docket NumberNo. 06-71631.,06-71631.
PartiesManik AHMED, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Jesse A. Cripps, Jr., and Matthew D. Taggart, Los Angeles, CA, for the petitioner.

Nairi M. Simonian, Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A076-613-636.

Before: HARRY PREGERSON and DAVID R. THOMPSON, Circuit Judges, and JEREMY D. FOGEL,* District Judge.

THOMPSON, Senior Circuit Judge:

Manik Ahmed ("Ahmed"), a native and citizen of Bangladesh, petitions for review of a final order by the Board of Immigration Appeals ("BIA") affirming a ruling by the Immigration Judge ("IJ") denying him a continuance of removal proceedings pending his appeal to the Administrative Appeals Office ("AAO") of the denial of his I-140 visa application. We have jurisdiction under 8 U.S.C. § 1252. We conclude that the IJ abused her discretion in denying the continuance. We grant the petition for review and remand for further proceedings.

BACKGROUND

Ahmed is a forty-six year old native and citizen of Bangladesh. He admits he entered the United States illegally near Los Angeles without inspection sometime during 1995.

Ahmed applied for and received labor certification from the Department of Labor on April 16, 2001. He worked as a chef at the Makkah Halal Tandoori Restaurant in Los Angeles. He specialized in preparing Indian cuisine. On October 2, 2003, Ahmed submitted an I-140 petition.

While Ahmed's I-140 petition was pending, the government initiated removal proceedings against him. Ahmed appeared before the IJ on July 27, 2004; the IJ continued the matter until February 1, 2005, pending a decision on his I-140 petition. That petition subsequently was denied by the Department of Homeland Security ("DHS"), and Ahmed appealed the denial to the AAO.

At the time of Ahmed's second appearance before the IJ on February 1, 2005, his appeal of the denial of his I-140 petition was still pending. Ahmed requested an additional six-month continuance, to await the AAO's decision. The government did not oppose Ahmed's request. The IJ nonetheless denied the continuance, declaring "I'm not keeping this on my calendar for his appeal pending on the I-140[.]"

The BIA issued a Burbano affirmance of the IJ's decision, Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994), concluding that Ahmed was not deprived of a full and fair hearing. In affirming the IJ's ruling, the BIA specifically noted that Ahmed could not establish prima facie eligibility for adjustment of status without an approved I-140 petition. Ahmed then filed the instant petition for review.

STANDARD OF REVIEW

Where, as here, the BIA issues a Burbano affirmance, we review the IJ's decision as if it were the decision of the BIA. See, e.g., Abebe v. Gonzales, 432 F.3d 1037, 1040 (9th Cir.2005) (en banc). We review for abuse of discretion an IJ's denial of a continuance. Karapetyan v. Mukasey, 543 F.3d 1118, 1121 (9th Cir.2008). We review questions of law de novo, and findings of fact for substantial evidence. Cui v. Mukasey, 538 F.3d 1289, 1290 (9th Cir.2008).

DISCUSSION

Before reaching the merits of Ahmed's appeal, we first must address the threshold issue of exhaustion. On appeal, Ahmed contends the IJ abused her discretion by denying his request for a second continuance because she failed to consider individual factors warranting a continuance in his case, and failed to make any statement of the grounds for her decision. Ahmed also contends the IJ violated his due process rights by depriving him of a full and fair hearing. The government argues Ahmed failed to exhaust these issues, because he did not raise any of these arguments in his brief before the BIA.

Claims addressed on the merits by the BIA are deemed exhausted. Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 874 (9th Cir.2008). Here, the BIA specifically addressed the question whether the IJ abused her discretion by denying Ahmed's request for a continuance. The BIA also determined that Ahmed was not deprived of a full and fair hearing. Ahmed's claims thus have been sufficiently exhausted.

Turning to the merits of the case, we must determine whether the IJ abused her discretion by denying Ahmed's request for a continuance. Under 8 C.F.R. § 1003.29, an IJ "may grant a motion for continuance for good cause shown." Karapetyan, 543 F.3d at 1129. The regulations do not define "good cause." The decision to grant or deny the continuance is within "the sound discretion of the judge and will not be overturned except on a showing of clear abuse." Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1247 (9th Cir.2008) (quoting De la Cruz v. INS, 951 F.2d 226, 229 (9th Cir.1991)). The IJ's discretion, however, is not without limits. Karapetyan, 543 F.3d at 1129.

Whether a denial of a continuance constitutes an abuse of discretion must be evaluated on a case by case basis; it "cannot be decided through the application of bright line rules." Cui, 538 F.3d at 1292. When reviewing an IJ's denial of a continuance, we consider a number of factors, including: (1) the nature of the evidence excluded as a result of the denial of the continuance, (2) the reasonableness of the immigrant's conduct, (3) the inconvenience to the court, and (4) the number of continuances previously granted. Karapetyan, 543 F.3d at 1129; see also Baires v. INS, 856 F.2d 89, 92-93 (9th Cir.1988).

1. Importance of Ahmed's AAO appeal

In both Cui and in Karapetyan, we held that the denial of a continuance prevented the petitioner from exercising her right to present evidence during removal proceedings. See, e.g., Cui, 538 F.3d at 1292-93; Karapetyan, 543 F.3d at 1130-31; see also 8 U.S.C. § 1252(b). In both cases, we evaluated the importance of the evidence excluded as a result of the denied motions. Cui, 538 F.3d at 1292-93; Karapetyan, 543 F.3d at 1130-31. Because the excluded evidence was of "vital importance" to each petitioner's case, we held that this "counsel[ed] in favor of granting a continuance." Cui, 538 F.3d at 1293; see also Karapetyan, 543 F.3d at 1130-31.

Just as a petitioner has a statutory right to present evidence on his own behalf in removal proceedings, the regulations provide visa applicants with the right to appeal the denial of an I-140 visa petition to the AAO. 8 U.S.C. § 1252(b); 8 C.F.R. § 204.5(n)(2). By denying Ahmed's request for a continuance, the IJ effectively pretermitted Ahmed's I-140 appeal.

Had the continuance been granted, and had Ahmed's AAO appeal been successful, he could have filed a Form I-485 to adjust his status to that of a permanent resident. If Ahmed departs or is removed, he could be ineligible to reapply or renter the United States for a period of ten years. 8 U.S.C. § 1182(a)(9)(B)(i)(I). Of course, there is no guarantee that Ahmed would have been successful in his appeal. Nonetheless, the outcome of the appeal was undeniably "important," and this weighs in favor of granting the continuance-especially in light of the consequences of voluntary departure or removal.

2. Ahmed's conduct

The need for a continuance did not result from any unreasonable conduct on Ahmed's part. Ahmed applied for his labor certification and filed his I-140 petition before removal proceedings were initiated against him. This distinguishes Ahmed from those petitioners who have applied for labor certification only after removal proceedings were initiated against them, in an attempt to delay the proceedings. Rajah v. Mukasey, 544 F.3d 449, 454 (2d Cir.2008) (discussing Elbahja v. Keisler, 505 F.3d 125 (2d Cir.2007) (per curiam)).

Though we have not heretofore addressed this precise issue, both the Second and Seventh Circuits have expressed concern about blaming a petitioner for an administrative agency's delay in processing an employment-based visa application. See, e.g., Rajah, 544 F.3d at 456 (reversing denial of continuance and remanding to the BIA for further guidance on what constitutes "sufficient time" in light of the "delays endemic in almost every stage of acquiring any visa"); Subhan v. Ashcroft, 383 F.3d 591, 593-95 (7th Cir.2004) (concluding that the immigration judge abused his discretion in denying petitioner a third requested continuance solely because the labor department had not yet acted on the petitioner's application, and holding that the immigration judge must provide a "reason consistent with [8 U.S.C. § 1255(i)]" when denying such a continuance). If anyone is to be blamed for the delay in this case, it is the AAO, not Ahmed. The need for a continuance cannot be attributed to any unreasonable behavior on Ahmed's part.

3. Inconvenience

There would have been no inconvenience to the government as a result of a second six-month continuance. Indeed, the government did not oppose Ahmed's request. Nor does the record reflect any specific inconvenience to the administrative court, aside from the IJ's announcement that she was not "keeping this on [her] calendar for his appeal pending on the I-140[.]"

We have repeatedly warned that "a myopic insistence upon expeditiousness" will not justify the denial of a meritorious request for delay, especially where the delay impairs the petitioner's statutory rights. Cui, 538 F.3d at 1292 (citation omitted). "[A]n immigrant's right to have[his or] her case heard should not be sacrificed because of the [immigration judge's] heavy caseload." Id. at 1295.

4. Number of continuances previously granted

Finally, we consider the number of continuances already afforded to the petitioner. Here, Ahmed had received one previous six-month continuance for the purpose of awaiting the DHS's decision on his I-140 petition. According to the estimate provided by the U.S. Citizenship and Immigration Service, the processing time for an I-140 appeal may be anywhere from nine to twenty-two months. U.S....

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