Cadavedo v. Lynch

• Decision Date: 31 August 2016
• Docket Number: No. 15-1914,15-1914
• Citation: 835 F.3d 779
• Parties: Ivan Mendoza Cadavedo, Petitioner, v. Loretta E. Lynch, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

835 F.3d 779

Ivan Mendoza Cadavedo, Petitioner,

v.Loretta E. Lynch, Attorney General of the United States, Respondent.

No. 15-1914

United States Court of Appeals, Seventh Circuit.

Argued May 24, 2016

Decided August 31, 2016

Timothy A. Gambacorta, Attorney, Gambacorta Law Office, Skokie, IL, for Petitioner.

OIL, Claire Workman, Attorneys, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before Rovner, Sykes, and Hamilton, Circuit Judges.

Hamilton

, Circuit Judge.

Ivan Mendoza Cadavedo, a native of the Philippines, petitions for review of a Board of Immigration Appeals decision that affirmed an immigration judge's denial of his request for a continuance. At a 2014 hearing, an immigration judge denied Cadavedo's request for a continuance to allow him to challenge a 2009 finding by United States Citizenship and Immigration Services (“USCIS”) that he had engaged in marriage fraud. That USCIS finding bars him from obtaining adjustment of his status to become a lawful permanent resident. We hold that there was no abuse of discretion in denying Cadavedo's request for a continuance. Cadavedo made his request during the hearing he sought to have continued, and his entitlement to the belated relief he wanted to seek from USCIS is speculative at best.

I. Background

This case revolves around Cadavedo's past and possible future attempts to adjust his immigration status to become a lawful permanent resident. Unauthorized immigrants who have an immigrant visa immediately available to them (among other requirements) may apply to have their status adjusted to that of lawful permanent resident. 8 U.S.C. § 1255(a)

. There are no numerical limits on visas for immediate relatives of United States citizens, including spouses, so a visa is immediately available to such an immigrant. 8 U.S.C. § 1151(b)(2)(A)(I). To obtain this benefit, a United States citizen may petition for recognition of her relative's classification as an immigrant entitled to a visa. 8 U.S.C. § 1154(a)(1)(A)(I) ; 8 C.F.R. § 204.1(a)(1). The immigrant may then apply for adjustment of status. See generally Matter of Hashmi , 24 I. & N. Dec. 785, 789–90 (BIA 2009) (describing process for adjustment of status). If an immigrant attempts to obtain adjustment of status through a sham marriage, however, no future petition on behalf of that immigrant may be approved. 8 U.S.C. § 1154(c) ; see also 8 C.F.R. § 204.2(a)(1)(ii).

In 2007, Cadavedo sought to adjust his status through his U.S. citizen wife. His wife filed an I-130 petition for recognition of Cadavedo as her spouse, and Cadavedo filed a corresponding I-485 petition to adjust his status to lawful permanent resident.

Immigration authorities interviewed the two to establish whether their marriage was bona fide. In her interview, Cadavedo's wife admitted that Cadavedo had promised to pay her to marry him for immigration purposes. She gave a sworn statement to USCIS and withdrew her I-130 petition. USCIS denied Cadavedo's I-485 petition to adjust his status. It notified Cadavedo that under 8 U.S.C. § 1154(c)

it could not approve any future petitions on his behalf because he had entered into a marriage for the purpose of evading the immigration laws.¹

In 2012, the Department of Homeland Security issued a Notice to Appear to Cadavedo. The Notice to Appear charged Cadavedo with removability based on overstaying his visa, 8 U.S.C. § 1227(a)(1)(B)

, working without authorization, § 1227(a)(1)(C)(i), and fraudulently attempting to adjust his status through a spousal preference, §§ 1182(a)(6)(C)(i), 1227(a)(1)(A). On May 16, 2013, Cadavedo appeared before an immigration judge and admitted all of the Attorney General's factual allegations except for his marriage fraud, which he denied. The judge scheduled a hearing on the contested fraud charge for October 17, 2013.

In the fall of 2013, Cadavedo retained new counsel. Cadavedo's new counsel sought to continue the October 17, 2013 hearing to develop his defense against the fraud charges of removability. The October 2013 federal government shutdown had the effect of granting a delay of several months, although the judge did not formally grant the continuance request.

On January 29, 2014, Cadavedo again appeared before the immigration judge. The Attorney General's witness for the contested fraud charges did not appear for the hearing, so the Attorney General dropped that charge and proceeded on the other, uncontested grounds for removability. During the hearing, Cadavedo sought a continuance to give him an opportunity to bring a collateral challenge to USCIS's fraud finding from 2009. Cadavedo told the judge he had a daughter who was in the process of naturalizing, and he said he wanted to seek adjustment of status through her.

The judge denied the request and ordered Cadavedo's removal on the uncontested grounds for removability. Cadavedo appealed the denial of the continuance to the Board of Immigration Appeals. The Board affirmed the judge's decision. It applied its precedent, Hashmi , 24 I. & N. Dec. at 790–92

, and concluded that Cadavedo had failed to demonstrate good cause to continue his proceedings. The relief Cadavedo wanted to seek from USCIS was untimely, and his entitlement to receive it was speculative at best. The Board also found no deprivation of Cadavedo's due process rights.

II. Analysis

A. Scope of Jurisdiction

We have jurisdiction to review Cadavedo's final order of removal under 8 U.S.C. § 1252(a)(1)

. This includes jurisdiction to review whether the Board erred in affirming the immigration judge's denial of a continuance along the way to reaching that final order. Calma v. Holder , 663 F.3d 868, 873 (7th Cir. 2011). Due to the limits on our jurisdiction under 8 U.S.C. § 1252(a)(2)(B)(i) I), we have jurisdiction to review the denial of the motion to continue unless “the agency's rationale for denying the procedural request also establishes the petitioner's inability to prevail on the merits of his underlying claim” for adjustment of status. Calma , 663 F.3d at 876

. Our jurisdiction extends to review of the denial of a continuance “that is sought for purposes of allowing another agency to complete its review.” Id. at 877. Cadavedo sought a continuance to ask another agency to reconsider its previous determination rather than to complete its review, but we are satisfied that we have jurisdiction to hear that claim.

B. Denial of Continuance

We review the Board's and judge's decision to deny a continuance for abuse of discretion. Calma , 663 F.3d at 870

. We will not overturn the decision “unless it was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group.” Id. at 878 (citation and internal quotation marks omitted). “Where, as here, the [Board] agrees with the [immigration judge's] decision but supplements his reasoning, we review the [judge's] decision as supplemented by the [Board].” Pawlowska v. Holder , 623 F.3d 1138, 1141 (7th Cir. 2010).

An immigration judge may grant a continuance “for good cause shown.” 8 C.F.R. § 1003.29

. In evaluating whether the circumstances warrant a continuance to pursue an I-130 petition, the Board and judges presume that “discretion should be favorably exercised where a prima facie approvable visa petition and adjustment application have been submitted in the course of an ongoing removal hearing.” Hashmi , 24 I. & N. Dec. at 790. The “focus of the inquiry is the apparent ultimate likelihood of success on the adjustment application.” Id. And the Board and judges also consider: “(1) the DHS response to the motion; (2) whether the underlying visa petition is prima facie approvable; (3) the respondent's statutory eligibility for adjustment of status; (4) whether the respondent's application for adjustment merits a favorable exercise of discretion; and (5) the reason for the continuance and other procedural factors.” Id.

The Board and judge did not abuse their discretion here. Cadavedo's visa petition was not “prima facie approvable” due to the USCIS finding in 2009 that Cadavedo had engaged in marriage fraud. See 8 U.S.C. § 1154(c)

; 8 C.F.R. § 204.2(a)(1)(ii). We agree with the Board and judge that Cadavedo's “apparent ultimate likelihood of success on the adjustment application” was at best speculative due to the fraud bar. Hashmi , 24 I. & N. Dec. at 790.²

Nothing in the record indicates that Cadavedo had a solid case to overturn the fraud bar. In his brief, Cadavedo also acknowledges that the possibility that USCIS would agree to entertain an appeal more than six years late was “nil.” The Board and judge did not abuse their discretion by denying Cadavedo's continuance request on these grounds. See Souley v. Holder , 779 F.3d 720, 723 (7th Cir. 2015)

(no abuse of discretion in denying motion to continue to allow petitioner's wife to file second I-130 petition after first one was denied); Calma , 663 F.3d at 878 (“sound reason” existed for denying continuance when adjustment of status was speculative and, if successful, would occur far into the future).³

The judge also properly considered “the reason for the continuance and other procedural factors.” Hashmi , 24 I. & N. Dec. at 790

. Cadavedo requested the continuance during a hearing and after he had received a de facto three-month continuance due to the 2013 government shutdown. Nothing in the record suggests that Cadavedo informed the Board or immigration judge of any action he took to contest the fraud bar and obtain an approved I-130 petition during his de facto three-month continuance. Nor is there any indication that he did so during the years between USCIS's notification that it had imposed the fraud bar and the 2014 hearing before the immigration judge.

Cadavedo argues that the Board abused its discretion because it failed to consider the factors for granting a continuance the Ninth Circuit identified in Baires v....