Giri v. Lynch

• Decision Date: 17 July 2015
• Docket Number: No. 13–3767.,13–3767.
• Citation: 793 F.3d 797
• Parties: Parashu GIRI, Petitioner, v. Loretta E. LYNCH, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

793 F.3d 797

Parashu GIRI, Petitioner

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

No. 13–3767.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 2, 2014.

Decided July 17, 2015.

Sakina Carbide, Chicago, IL, for Petitioner.

Joseph A. O'Connell, OIL, Jessica E. Sherman, Department of Justice, Washington, DC, for Respondent.

Before WOOD, Chief Judge, and WILLIAMS and TINDER, Circuit Judges.

Opinion

WILLIAMS, Circuit Judge.

Parashu Giri, a citizen of Nepal, was living in the United States as a conditional permanent resident based on his marriage to a U.S. citizen, Tammy Giri, until the United States Citizenship and Immigration Services (“USCIS”) terminated his conditional resident status after finding that his marriage was entered into for the purpose of remaining in the United States. Removal proceedings commenced shortly thereafter. On the day of his merits hearing—after the court granted his request to advance the date of his merits hearing—Parashu¹ sought a continuance on the grounds that he had not been fingerprinted, as required, and was not able to timely submit documentation to support the validity of his marriage to his U.S. citizen spouse. The immigration judge (“IJ”) denied the request finding that Parashu had ample time to get fingerprinted and submit his petition for relief and evidence supporting the bona fides of his marriage, but he was not diligent in completing these tasks. Because the IJ previously had found that Parashu conceded removability, and there were no additional matters pending before the IJ, the IJ ordered Parashu removed to Nepal. The Board of Immigration Appeals (“BIA”) upheld the IJ's ruling. Parashu petitioned this court for review. Because the immigration courts provided a reasoned explanation for the IJ's decision not to grant a continuance that did not depart from established policies or rest on an impermissible basis and because the record indicates that Parashu conceded removability and was removable to Nepal, we deny the petition for review.

I. BACKGROUND

On April 29, 1998, Parashu Giri, a citizen of Nepal, lawfully entered the United States as a nonimmigrant visitor. In 2001, he married a U.S. citizen, Tammy Giri, and gained conditional permanent residence based on his marriage to Tammy. This was Parashu's second marriage.

In May 2003, Parashu and Tammy submitted a joint I–751 petition to remove the conditions of his permanent residence. USCIS denied the petition in February 2007 based on Parashu's and Tammy's failure to appear for the I–751 interview and a letter Tammy sent to USCIS in July 2003 withdrawing her support of the I–751 petition. In April 2007, Parashu and Tammy filed a second joint I–751 petition. On January 29, 2010, USCIS denied the petition finding that Parashu maintained a relationship with his first wife after their purported divorce in 1998, lived and had a child with his first wife during his marriage to Tammy, Parashu did not consistently live with his U.S. citizen spouse, and other evidence led to the conclusion that Parashu entered into the marriage with Tammy to avoid immigration laws. In February 2010, the Department of Homeland Security (“DHS”) served Parashu with a notice to appear, which commenced removal proceedings.

Sakina Carbide, Parashu's counsel, refiled a motion for an individual hearing on October 21, 2010. (The immigration court rejected the initial motion packet, filed on September 8, 2010, because of a missing signature.) The motion packet contained the motion and a response to the notice to appear, among other documents. The motion for an individual hearing informed the court that Parashu and Tammy wished to renew their I–751 petition. But a copy of an I–751 petition was not included. The motion requested that the IJ schedule a merits hearing regarding the same as soon as possible. The response to the notice to appear, signed by Parashu, admitted almost all of the allegations in the notice to appear, specifically, that he: (1) is not a U.S. citizen, (2) is a citizen of Nepal, (3) was admitted to the United States on or about April 29, 1998, and (4) became a permanent resident on a conditional basis on July 31, 2001. He also admitted that his conditional status was terminated, but he denied that he was removable.

On October 21, 2010, by written order, the immigration court granted the motion for a merits hearing, finding that Parashu conceded removability. The order also stated that “The application(s) for relief must be filed by 45 days before next hearing”; and Parashu must be fingerprinted “by 60 days before next hearing.” The next day the immigration court issued a notice of hearing stating that Parashu's merits hearing would take place on July 25, 2012. On February 17, 2012 the court issued another notice rescheduling the merits hearing to August 23, 2012.

The immigration court held the merits hearing on August 23, 2012. Parashu appeared at the hearing with his counsel, Carbide, who had not yet entered an official appearance even though she had been representing Parashu in this matter since at least August 2010. She acknowledged that she failed to enter an appearance.

After discussing her failure to enter an appearance, counsel asked for a continuance based on the fact that Parashu had not been fingerprinted and that counsel was unable to timely submit the documentary evidence supporting the bona fides of Parashu's marriage, which was over 800 pages of documents illustrating the couple's twelve-year relationship and included a copy of the I–751 petition dated March 1, 2007. She stated that she had trouble getting an appointment for USCIS to fingerprint Parashu. She stated that over the past two years there had been difficulty trying to obtain the documentary evidence from Parashu to support the bona fides of the marriage, and that she just received the documents the previous afternoon. She admitted that her first meeting with Parashu to prepare his case occurred two days before the hearing. Though not stated at the merits hearing, Carbide said at oral argument that she tried to meet with Parashu several times prior to the merits hearing, but he would cancel each meeting.

The IJ noted that her previous order indicated that Parashu had to be fingerprinted sixty days before the merits hearing and that he had to submit his application forty-five days before the merits hearing. The IJ also noted that Parashu requested an early hearing date but did nothing to prepare for the hearing for two years. Ultimately, the IJ determined that a continuance was not warranted because Parashu had ample time to prepare for the hearing and failed to do so and failed to present a reason why he was not ready for the hearing. Since there was nothing further pending before the court and Parashu had already conceded removability, the court ordered Parashu removed to Nepal.

Parashu appealed the IJ's ruling to the BIA. On November 15, 2013, the BIA affirmed the IJ's ruling in an order relying on the IJ's determination of fact and law and supplementing the ruling with its own analysis.

II. ANALYSIS

Parashu petitions the court for review. He raises two main issues, whether (1) the IJ abused her discretion by denying his motion for a continuance, and (2) the IJ erred by finding that he conceded removability and ordering him removed to Nepal. Since the BIA adopted the findings of the IJ and added its own analysis, we review the IJ's decision as supplemented by the BIA. Palma–Martinez v. Lynch, 785 F.3d 1147, 1149 (7th Cir.2015).

A. The IJ Did Not Err by Denying Parashu's Motion for Continuance.

The court reviews a denial of a motion for a continuance for an abuse of discretion. See Calma v. Holder, 663 F.3d 868, 875 (7th Cir.2011). “[A]s long as the immigration judge gives a reason for his decision, this court will uphold the decision unless it was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.”Id. The court reviews constitutional claims de novo. Alvarado–Fonseca v. Holder, 631 F.3d 385, 389 (7th Cir.2011).

Parashu argues that a continuance was warranted because he did not seek one for purposes of delay, had never requested a continuance, and was unaware of the deadline for filing supplemental evidence. He further argues that he had good cause for his delay in filing, but the court never allowed him to explain that because his abusive and controlling wife was withholding documents from him, he was unable to file the supplemental evidence earlier. He suggests that he should receive a reprieve from the consequences of his actions because he was pro se until the hearing.

An IJ “may grant a motion for continuance for good cause shown.” 8 C.F.R. § 1003.29. Further an IJ “may set and extend time limits for the filing of applications and related documents and responses thereto, if any. If an application or document is not filed within the time set by the Immigration Judge, the opportunity to file that application or document shall be deemed waived.” 8 C.F.R. § 1003.31(c).

The IJ denied the continuance because Parashu had over a year and a half to prepare for the merits hearing, which Parashu requested accelerated; he had been warned of the deadlines for filing his application and completing fingerprinting and failed to comply; he did not give a reason for his lack of compliance; and he did not request a continuance in advance of the merits hearing. This explanation is rational and neither inexplicably departs from established policies nor rests on an impermissible basis. Also, it was within the IJ's discretion to refuse to give Parashu more time to file the supporting documents. See 8 C.F.R. § 1003.31(c). Therefore, the IJ's...