Cui v. Mukasey

• Decision Date: 19 August 2008
• Docket Number: No. 05-72185.,05-72185.
• Citation: 538 F.3d 1289
• Parties: Qi CUI, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

538 F.3d 1289

Qi CUI, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.

No. 05-72185.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 8, 2008.

Filed August 19, 2008.

William Kiang, Law Offices of Kiang & Kiang, San Gabriel, CA, for the petitioner.

Peter D. Keisler, Assistant Attorney General, Civil Division; Richard M. Evans, Assistant Director; Allen W. Hausman, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A75-726-338.

Before: HARRY PREGERSON, GLENN L. ARCHER, JR.,^* and KIM McLANE WARDLAW, Circuit Judges.

PREGERSON, Circuit Judge:

Qi Cui ("Cui"), a native and citizen of China, petitions for review of a final order by the Board of Immigration Appeals ("BIA") affirming Immigration Judge ("IJ") Thomas Y.K. Fong's ruling that pretermitted Cui's application for withholding of removal and relief under the Convention Against Torture ("CAT"). We must decide whether the IJ abused his discretion in refusing to grant Cui's motion for a continuance so that she could resubmit fingerprints for a background security check. We have jurisdiction under 8 U.S.C. § 1252, and we grant relief and remand.

STANDARD OF REVIEW

We review an IJ's decision to deny a request for continuance for abuse of discretion. See Nakamoto v. Ashcroft, 363 F.3d 874, 883 n. 6 (9th Cir.2004); see also Baires v. INS, 856 F.2d 89, 91 (9th Cir. 1988). We review questions of law de novo. Baballah v. Ashcroft, 367 F.3d 1067, 1073 (9th Cir.2004). We review factual findings for substantial evidence. Abebe v. Gonzales, 432 F.3d 1037, 1039 (9th Cir. 2005).

FACTUAL AND PROCEDURAL BACKGROUND

Qi Cui is a thirty-eight-year-old native and citizen of China. She was admitted to the United States on April 15, 1996 as a non-immigrant business visitor. Cui testified that she was sent to the United States by Glory International to develop its business as its financial manager. Cui began studying at Rosemead College and changed to non-immigrant student status. She testified that she later attended Pasadena City College to study nursing. The Department of Homeland Security ("DHS") (formerly INS) authorized Cui to remain in the United States until December 19, 1998. She remained in the United States beyond that date without authorization from DHS.

On October 2, 2000, Cui applied for asylum. She claimed that she suffered a coerced abortion in China as a result of the national one-child policy. To support her asylum application, she submitted her fingerprints for analysis. There is no evidence that the fingerprint analysis revealed any criminal record or other problems with Cui's eligibility for asylum. Her case was then referred to the immigration court.

Removal proceedings were commenced against Cui on December 12, 2000, with the filing of a Notice to Appear that alleged that Cui had remained in the United States beyond December 19, 1998 without authorization.

On January 23, 2001, Cui and her counsel appeared for the master calendar hearing. But, at the government's request, the IJ rescheduled the hearing for March 8, 2001 because the government requested a continuance to consider dismissing the charges against Cui. On March 8, 2001, the IJ granted another continuance because, "just prior to going on the record," the government had decided to amend the charges against Cui.

On April 3, 2001, Cui and her counsel appeared and responded to the amended allegations. The IJ again rescheduled the hearing on removability "to give both sides an opportunity to review the materials and documents offered in this case." Because Cui's counsel had a "busy calendar" on June 4, 2001, the IJ reset the hearing for August 6, 2002.

On August 6, 2002, Cui contested her removability. She explained that she had been unable to complete the requirements for her program before her student stay expired. She further explained that her college had failed to submit a Form I-538, requesting that her student immigrant status be extended to enable her to complete her nursing program. When the IJ expressed interest in the testimony of a certain witness, Cui's counsel asked for a short continuance so that the witness could be subpoenaed. The IJ granted the request. The matter was reset for August 19 and then rescheduled for September 18 because the witness was unavailable on the August 19 date.

On September 18, 2002, following the hearing on the removability issue, Cui's counsel conceded that Cui was removable. Cui withdrew her application for asylum but indicated she would still pursue withholding of removal and CAT relief. The IJ asked, "when was the last time[Cui] did it [i.e., submitted her fingerprints]?" Cui's counsel explained that Cui had completed the required fingerprinting but that the fingerprints were submitted "more than one year ago." The IJ then told Cui's counsel that "it would have to be done ... a minimum of 60 days before the hearing, not more than 120 days." The IJ did not confirm that Cui, who had requested a Mandarin interpreter, understood those directions. Nor did the IJ inform Cui of the consequences of failing to submit a new set of fingerprints in advance of the merits hearing.

On February 5, 2003, both Cui and her counsel appeared for the merits hearing, but a priority case took precedence. The IJ explained, "the court has simply run out of time." The IJ rescheduled the merits hearing for June 20, 2003 — his "first available date." The IJ did not inquire about the status of Cui's fingerprints, nor did he warn Cui of the consequences of failing to resubmit fingerprints before the rescheduled merits hearing.

On June 20, 2003, Cui's counsel advised the IJ that Cui had not yet resubmitted her fingerprints. Cui's counsel explained, "Your Honor, I have no good excuse for [failing to submit updated fingerprints]. I, I believe we just overlooked it. We forgot about it. I'm sorry." Cui's counsel requested a short continuance to update the fingerprints before the IJ held a merits hearing. Alternatively, Cui's counsel requested that the IJ proceed with the merits hearing as planned and grant a continuance for Cui to resubmit fingerprints if relief otherwise was warranted.

The IJ denied Cui's motion for a continuance to enable her to resubmit fingerprints "[T]his case has been going on for a period of time.... I don't see good cause again for ... proceeding when the record is quite clear that I gave you and your client opportunity to present the claim...." Because of this ruling, the IJ pretermitted, i.e., cut short, Cui's applications for relief without hearing any testimony or considering any evidence. The evidence included a medical record that corroborated Cui's claim that she suffered a forced abortion while in China.

Cui appealed to the BIA. The BIA affirmed the IJ's pretermission of Cui's applications for relief, finding that Cui failed to show good cause for her failure to update her fingerprints prior to the latest rescheduled merits hearing. The BIA also denied Cui's motion to reopen and reconsider its previous decision.

DISCUSSION

For almost all types of relief from removal, a fingerprint check is required to establish that the applicant has not been convicted of particular classes of crimes, and that she is not otherwise inadmissible or ineligible. The results of a fingerprint check expire fifteen months after the date they are issued by DHS. DHS may require that the applicant resubmit her fingerprints so that DHS can update the security checks. 70 Fed.Reg. 4743, 4744 (Jan. 31, 2005). Because Cui submitted her fingerprints more than two years before her rescheduled merits hearing, Cui was required to resubmit her fingerprints for an updated security check before she could be granted relief.

We must decide whether the IJ abused his discretion in denying Cui's motion for a continuance so that she could resubmit her fingerprints. We hold that, in the circumstances of this case, the IJ's denial of Cui's request for a continuance constituted an abuse of discretion. Accordingly, we grant Cui's petition and remand for the IJ to grant Cui the opportunity to submit new fingerprints in advance of her merits hearing.

Under 8 C.F.R. § 1003.29, an IJ "may grant a motion for continuance for good cause shown." In the context of immigration proceedings, the decision to grant or deny continuances is in the sound discretion of the trial judge. See Nakamoto, 363 F.3d at 883 n. 6 (9th Cir.2004); see also Baires, 856 F.2d at 91. But the IJ's discretion is limited. In particular, we have cautioned that "`a myopic insistence upon expeditiousness in the face of a justifiable request for delay' can render the immigrant's statutory rights merely `an empty formality.'" Baires, 856 F.2d at 91 (quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964)). "The 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." Id.

When evaluating an IJ's denial of a motion for continuance we consider a number of factors — including, for example, (1) the importance of the evidence, (2) the unreasonableness of the immigrant's conduct, (3) the inconvenience to the court, and (4) the number of continuances previously granted. See Baires, 856 F.2d at 92-93; cf. United States v. Flynt, 756 F.2d 1352, 1358-59 (listing factors appellate court considers when reviewing district court's denial of request for continuance), amended, 764 F.2d 675 (9th Cir.1985).

We start by considering the evidence that was excluded as a result of the IJ's denial of Cui's motion for a continuance. In this case, Cui's ability to submit new fingerprints for analysis was vital to the success of her petitions. Without an updated security check, Cui could...