Calma v. Holder
| Decision Date | 14 June 2011 |
| Docket Number | 10–3973.,Nos. 10–2795,s. 10–2795 |
| Citation | 663 F.3d 868 |
| Parties | Ricardo Yonzon CALMA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.Oleh Khomyshyn, Petitioner, v. Eric H. Holder, Jr., Attorney General of the United States, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
OPINION TEXT STARTS HERE
Justin R. Burton, Matthew Scott Kriezelman (argued), Attorneys, Kriezelman Burton & Associates, Chicago, IL, for Petitioners in No. 10–2795.
OIL, Jane T. Schaffner (argued), Attorneys, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondents in No. 10–2795.
Scott E. Bratton, Attorney, Wong & Associates, Cleveland, OH, for Petitioner in No. 10–3973.Jamie M. Dowd, Jeffery R. Leist, OIL, Attorneys, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent in No. 10–3973.
Before POSNER, ROVNER, and WOOD, Circuit Judges.
The petitioners in these consolidated cases, Ricardo Calma and Oleh Khomyshyn, have a great deal in common. Both have been in the United States for many years without permission, and each would like to adjust his status to that of lawful permanent resident through relatives who are legitimately in the United States. When the time came for an Immigration Judge (IJ) to issue a decision, each was found ineligible for permanent residence because of the lack of an approved family-relative petition, Form I–130. Confronted with that obstacle, they asked the IJs to continue the removal proceedings, but the IJs denied those requests and ordered removal. We have consolidated their petitions for review. Although we are satisfied that we have jurisdiction over those petitions, we find no abuse of discretion in the judges' rulings and thus deny both petitions.
Calma is a citizen of the Philippines who came to the United States as a temporary worker in 1982. In 1986 he married Pamela Fuoss, a U.S. citizen, and she filed an I–130 petition on his behalf. But during her interview in support of the application and later in an affidavit, Fuoss admitted that she married Calma only so that he could remain in the United States. She withdrew her petition, prompting the legacy Immigration and Naturalization Services to place Calma in deportation proceedings before an IJ. After Calma failed to show up, the INS administratively closed the case in September 1987.
Calma reemerged 18 years later, in April 2005, when his son Roderick, a U.S. citizen, filed a second I–130 petition on his behalf. The Department of Homeland Security (DHS) approved Roderick's petition in July of that year, and in September Calma moved to restore his earlier deportation hearing (by this time called a removal proceeding) to the calendar. Calma indicated that once the proceeding was active again, he would apply for permanent residence based on his son's approved I–130 petition.
Calma's petition to restore the case was successful, though as we shall see, a Pyrrhic victory. IJ Zerbe held a deportation hearing, at which the judge found that Calma was deportable for overstaying his visa, as charged in the 1987 administrative-closure order. Calma informed the IJ that he was working to obtain an adjustment of status through his son. In response, the IJ continued the hearing for a year to give Calma time to apply for his adjustment of status and to give the government an opportunity to perform necessary background checks. At the next hearing, the government informed Calma that it intended to revoke his son's I–130 petition based on the fraudulent marriage in 1986. The IJ continued the matter a second time to await the resolution of the revocation proceedings.
The month before Calma's next hearing, DHS revoked Roderick's I–130 petition after concluding that Calma married Fuoss for immigration benefits. The agency determined that the rebuttal evidence that Calma submitted, including affidavits from Calma, his current wife, and the couple who arranged the sham marriage, failed to refute the 1987 affidavit filed by Fuoss admitting the fraud. DHS concluded that the 1986 marriage “was not valid for immigration purposes,” and that Calma's fraud was a “good and sufficient” reason to deny his son's I–130 petition. With the I–130 petition revoked, Calma no longer had a basis for seeking permanent residence in the United States. At that point, he asked for a continuance so that he could appeal the decision to revoke to the Board. The IJ accommodated this request with a postponement until October 24, 2008.
Unfortunately, when Calma returned on that date, the Board still had not resolved his appeal from the revocation of the I–130 petition. Calma asked for yet another continuance, but this time the IJ's patience was at an end. Commenting that he did not believe that any further delay was warranted, he denied this last postponement and ordered Calma removed.
The Board dismissed Calma's appeal from the order denying the continuance in July 2010. It found that the pending I–130 appeal was insufficient cause for granting the continuance. Moreover, the Board continued, Calma was unable to show prejudice to his application for permanent residence because he presented no evidence that his appeal from the revocation of the I–130 petition had been successful. The petition for review now before us in No. 10–2795 is from this decision of the Board. This was a final decision that discussed only the continuance question; its practical effect was to leave undisturbed the IJ's decision that Calma was removable as charged.
Khomyshyn's case is somewhat less complicated. He is a citizen of Ukraine who came to the United States on a tourist visa in 2000. He appeared at his first hearing before an IJ in March 2009 and asked IJ Zerbe to continue his case so that his wife, who was herself a permanent U.S. resident at the time, could file an I–130 petition on his behalf. Khomyshyn explained that they were waiting to submit the petition until his wife became a naturalized citizen, a status she would have been eligible to begin seeking five months later. He urged that as the spouse of a citizen he would be immediately eligible for adjustment of status, but as the spouse of a permanent resident he would be subject to DHS's “priority-date” system and would thus have to wait several years before becoming eligible for this relief.
The IJ denied the continuance request and ordered Khomyshyn removed. The IJ noted that Khomyshyn's wife had not yet filed an immediate-relative petition on his behalf and concluded that even if she had, a continuance would still be inappropriate because, as a permanent resident, it would take more than four years for her to confer a benefit on Khomyshyn. Although the IJ recognized that the wait would be reduced if Khomyshyn's wife became a citizen, he thought it “inappropriate to assume that she would qualify for ... naturalization.” In general terms, the IJ explained that he considered it improper to continue a case “so that the alien can at some future unknown date accrue or develop an equity which would qualify him for relief from removal,” particularly in light of the agency's goal that IJs complete cases within 18 months.
Khomyshyn's appeal to the Board challenged only the IJ's order denying his request for a continuance until he could establish his eligibility for adjustment of status. The Board noted that he did not otherwise challenge his removability. Exercising de novo review, it affirmed the IJ's decision to deny the continuance request. In so doing, it highlighted the IJ's decision to deny “the continuance request because [Khomyshyn's] wife had not yet filed the I–130” and the fact that Khomyshyn “could not establish visa availability as the spouse of a lawful permanent resident.” This reasoning, the Board concluded, was consistent with the approach it had announced in Matter of Hashmi, 24 I. & N. Dec. 785, 790–91 (B.I.A.2009), a precedential decision providing a nonexhaustive list of factors that IJs should consider when deciding a request for a continuance. The Board criticized the IJ for taking into account his case-completion goals, but it concluded that remand was not necessary because that factor was not the IJ's primary consideration. Khomyshyn's petition for review, No. 10–3973, seeks relief from the final decision of the Board refusing a continuance and thus ordering his removal.
Both petitioners argue that the IJ (coincidentally, the same one) abused his discretion in denying their requested continuances. But before we address that question, we must decide whether we have jurisdiction over these two petitions for review. In Kucana v. Holder, ––– U.S. ––––, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010), the Supreme Court held that the jurisdiction-stripping language of 8 U.S.C. § 1252(a)(2)(B)(ii) did not apply to actions of the Attorney General made discretionary by regulation, as opposed to statute. This led to a ruling in Kucana itself that judicial review of a motion to reopen removal proceedings in which the petitioner sought asylum was available, albeit only for abuse of discretion. This was so despite the fact that the ultimate question—whether to reopen—rests firmly within the Attorney General's discretion.
The BIA must reach a “final” decision on the overall removal proceeding before a petition may be filed in this court, see 8 U.S.C. § 1252(a)(1) (...
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