Ferreira v. U.S. Attorney Gen.

• Decision Date: 16 April 2013
• Docket Number: No. 11–14074.,11–14074.
• Citation: 714 F.3d 1240
• Parties: Anderson FERREIRA, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

714 F.3d 1240

Anderson FERREIRA, Petitioner,
v.
U.S. ATTORNEY GENERAL, Respondent.

No. 11–14074.

United States Court of Appeals,
Eleventh Circuit.

April 16, 2013.

[714 F.3d 1241]

Nicolas A. Olano, Law Office of Nicolas Olano, PA, Miami, FL, for Petitioner.

Nicole Prairie, U.S. DOJ, Civ. Div.–OIL, David V. Bernal, Deitz P. Lefort, Krystal Samuels, U.S. DOJ, OIL, Eric Holder, Jr., U.S. Atty. Gen.'s Office, Washington, DC, Michelle Ressler, Dist. Counsel's Office, Miami, FL, for Respondent.

Petition for Review of a Decision of the Board of Immigration Appeals.
Before TJOFLAT and PRYOR, Circuit Judges, and ROTHSTEIN,^* District Judge.

ROTHSTEIN, District Judge:

Anderson Ferreira, a native and citizen of Brazil, sought a continuance of his deportation proceedings to await the availability of an immigrant visa based on his approved I–140 petition. After the Immigration Judge denied Ferreira's motion for a continuance, he appealed to the Board of Immigration Appeals (“BIA”). The BIA dismissed the appeal, and Ferreira moved for reconsideration, which was also denied. Ferreira now seeks review of the BIA's denial of his motion for reconsideration. In his petition, Ferreira argues that the BIA abused its discretion by failing to consider the factors set forth in Matter of Hashmi, 24 I. & N. Dec. 785 (BIA 2009) and Matter of Rajah, 25 I. & N. Dec. 127 (BIA 2009). We agree that the BIA erred in failing to abide by its own precedent, and, accordingly, grant the petition, vacate the decision of the BIA, and remand for further proceedings.

I. BACKGROUND

Ferreira was admitted to the United States on a temporary visitor visa that expired in August 1998. Ferreira remained in the United States, and, on July 3, 2007, the Department of Homeland Security (“DHS”) initiated removal proceedings by issuing a Notice to Appear (“NTA”). The NTA advised Ferreira that he was deportable because he had remained in the United States longer than the authorized period.

During the removal proceedings, a potential employer, Color Factory, Inc., filed an I–140 alien-worker petition on Ferreira's behalf. Ferreira sought a continuance

[714 F.3d 1242]

of his removal proceedings to await a decision by the U.S. Citizenship and Immigration Services (“USCIS”) on Color Factory, Inc.'s pending I–140 alien-worker petition. The Immigration Judge granted the continuance but expressed concern that, even if USCIS granted the I–140 petition, a visa would not be immediately available to Ferreira due to the backlog in issuing visas. Without the issuance of a visa, Ferreira would presumably remain removable from the United States, as he could not apply to adjust his immigration status.

On September 17, 2009, USCIS approved the I–140 petition with a June 2, 2008 “priority date”¹ and forwarded it to the Department of State for visa processing. When Ferreira again appeared before the Immigration Judge, on February 9, 2010, he requested another continuance in order to allow time for his priority date to become current and for a visa to become available. ² The Immigration Judge observed that the Department of State Visa Bulletin's priority date was then December 15, 2002—six years from Ferreira's priority date. The Immigration Judge found that no good cause existed to continue the proceedings, “[g]iven that there [was] an extensive period of time before [Ferreira's] visa becomes current,” and ordered Ferreira removed to Brazil.

Ferreira appealed the Immigration Judge's denial of a continuance to the BIA. The BIA dismissed his appeal, agreeing with the Immigration Judge that Ferreira had not shown good cause for a continuance given that “an immigrant visa was not available and would not be for some time.” Like the Immigration Judge, the BIA noted that Ferreira's priority date was significantly later than the then-current date in the Department of State...