Hassan v. I.N.S., No. 96-1311

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore BAUER, FLAUM, and KANNE; KANNE
Citation110 F.3d 490
Decision Date01 April 1997
Docket NumberNo. 96-1311
PartiesTenny HASSAN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Page 490

110 F.3d 490
Tenny HASSAN, Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 96-1311.
United States Court of Appeals,Seventh Circuit.
Argued Jan. 23, 1997.
Decided April 1, 1997.

Page 491

Royal F. Berg, Chicago, IL, argued for Petitoiner.

Carl H. McIntyre, Jr., Department of Justice, Office of Immigration Litigation, Washington, DC, Samuel Der-Yeghiayan, Immigration & Naturalization Service, Chicago, IL, Richard M. Evans, Quynh Vu (argued), David M. McConnell, Stephen W. Funk, and Michelle Gluck, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before BAUER, FLAUM, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

We must decide whether the Board of Immigration Appeals ("BIA") abused its discretion or violated Tenny Hassan's due process rights by refusing to continue his deportation proceedings so that his wife could appeal the denial of an immediate relative visa petition filed on his behalf. Because we find that the BIA did not abuse its broad discretion in refusing to grant the continuance, we affirm its decision dismissing Mr. Hassan's deportation appeal and deny the petition for review.

I. HISTORY

Tenny Hassan is a native and citizen of Nigeria who was last admitted into the United States as a nonimmigrant visitor for business on September 11, 1987. Hassan's authorization to remain in this country expired one month later on October 11. On February 2, 1994, the Immigration and Naturalization Service ("INS") commenced deportation proceedings against Hassan, charging him with remaining in the United States longer than permitted. Hassan concedes deportability because he overstayed his visa, but he applied for a suspension of deportation.

Hassan believes that he is entitled to a suspension of deportation based on an immediate relative visa petition (an I-130) that his wife filed on his behalf in June 1993. An I-130 visa petition is a prerequisite to an alien's application for permanent residence based on marriage to a United States citizen. Hassan married his wife LaVerne--a United States citizen by birth--on April 26, 1991; the couple previously gave birth to a child on January 29, 1991. Although Hassan's wife continued to support the visa petition, the INS District Director denied the petition 1 and began the deportation proceedings on February 2, 1994. Hassan's wife filed a timely appeal from the District Director's decision on February 18, 1994, and this appeal is apparently still pending.

The deportation proceedings that began on February 2, 1994 lingered over the next year, and on April 14, 1995 the IJ decided that Hassan was deportable because Hassan had overstayed his visa as a nonimmigrant visitor for business. Moreover, the IJ also determined that as a matter of law Hassan was not eligible for suspension of deportation or voluntary departure because Hassan could not establish that he had been a person of good moral character during his stay in the United States. The IJ reached this conclusion after finding that Hassan's prior conviction for deceptive practices constituted a crime of moral turpitude. 2 Finally, the IJ stated that he had no jurisdiction to review the denial of the I-130; instead, the IJ treated

Page 492

Hassan's requests and comments regarding the treatment of the I-130 as a request for a continuance, which the IJ subsequently denied. The IJ, however, added that Hassan could ask to have his deportation case reopened if an appeal of the immediate relative visa petition were granted.

Hassan appealed the IJ's decision, claiming that it "was an abuse of discretion for the Judge to refuse to continue this matter, when the facts clearly show that the I-130" was approvable. The BIA subsequently dismissed Hassan's deportation appeal finding that the IJ properly refused to grant Hassan's motion for a continuance.

II. ANALYSIS

The primary issue we must decide is whether the BIA abused its discretion in denying Hassan's request to continue his deportation proceedings. "The granting of a continuance is within the sound discretion of the IJ and is reviewed for clear abuse." Castaneda-Suarez v. INS, 993 F.2d 142, 146 (7th Cir.1993) (citing Castaneda-Delgado v. INS, 525 F.2d 1295, 1300 (7th Cir.1975)). Thus, we will uphold the BIA's decision "unless it was made without a rational explanation, it inexplicably departed from established policies, or it rested on an impermissible basis, e.g., invidious discrimination against a particular race or group." Id. (quoting Cordoba-Chaves v. INS, 946 F.2d 1244, 1246 (7th Cir.1991)).

An IJ may grant a motion for continuation in a deportation proceeding upon an alien's showing of "good cause." 8 C.F.R. § 3.29; see also 8 C.F.R. § 242.13 (empowering an IJ to grant "a reasonable adjournment" after the commencement of a hearing for "good cause shown"). Significantly, an alien is generally entitled to the favorable exercise of an IJ's discretion regarding a request for a continuance where the District Director has not yet adjudicated a prima facie approvable visa petition and adjustment of status application. In re Matter of Garcia, 16 I & N Dec. 653, 656-57 (BIA 1978). The BIA's decision in Garcia, however, did not "establish an inflexible rule" that would require an IJ to continue a deportation proceeding in all cases pending a District Director's final adjudication of a visa petition. Id. at 657. In that regard, the BIA added that

[i]t clearly would not be an abuse of discretion for the immigration judge to summarily deny a request for a continuance or a motion to reopen upon his determination that the visa petition is frivolous or that the adjustment application...

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17 practice notes
  • Evangelical Lutheran Church in America v. Immigration and Naturalization Service, Civil Action 02-01297 (HHK) (D. D.C. 10/30/2003), Civil Action 02-01297 (HHK).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 30 Octubre 2003
    ...held to be a collateral issue not within the scope of deportation, removal, or exclusion proceedings." Id. at 1159 (citing Hassan v. INS, 110 F.3d 490, 494 (7th Cir. 1997); Pritchett v. INS, 993 F.2d 80, 82 (5th Cir. 1993); Conti v. INS, 780 F.2d 698, 702 (7th Cir. 1985); Elbez v. INS, 767 ......
  • Shanti, Inc. v. Reno, No. Civ. 97-2777 (MJD/AJB).
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • 16 Febrero 1999
    ...has been held to be a collateral issue not within the scope of deportation, removal, or exclusion proceedings. See, e.g., Hassan v. INS, 110 F.3d 490, 494 (7th Cir. 1997); Pritchett v. INS, 993 F.2d 80, 82 (5th Cir.1993); Conti v. INS, 780 F.2d 698, 702 (7th Cir.1985); Elbez v. INS, 767 F.2......
  • Evangelical Lutheran Church in America v. I.N.S., No. CIV.A. 02-01297 (HHK).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 30 Octubre 2003
    ...held to be a collateral issue not within the scope of deportation, removal, or exclusion proceedings." Id. at 1159 (citing Hassan v. INS, 110 F.3d 490, 494 (7th Cir.1997); Pritchett v. INS, 993 F.2d 80, 82 (5th Cir.1993); Conti v. INS, 780 F.2d 698, 702 (7th Cir.1985); Elbez v. INS, 767 F.2......
  • Nazarova v. I.N.S., No. 97-3261
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 19 Marzo 1999
    ...Nonetheless, whether an immigration proceeding violates due process is a purely legal issue, which we review de novo. Hassan v. INS, 110 F.3d 490, 493 (7th Section 242B of the Immigration and Nationality Act governs this case, which arose before the effective date of the Illegal Immigration......
  • Request a trial to view additional results
17 cases
  • Evangelical Lutheran Church in America v. Immigration and Naturalization Service, Civil Action 02-01297 (HHK) (D. D.C. 10/30/2003), Civil Action 02-01297 (HHK).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 30 Octubre 2003
    ...held to be a collateral issue not within the scope of deportation, removal, or exclusion proceedings." Id. at 1159 (citing Hassan v. INS, 110 F.3d 490, 494 (7th Cir. 1997); Pritchett v. INS, 993 F.2d 80, 82 (5th Cir. 1993); Conti v. INS, 780 F.2d 698, 702 (7th Cir. 1985); Elbez v. INS, 767 ......
  • Shanti, Inc. v. Reno, No. Civ. 97-2777 (MJD/AJB).
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • 16 Febrero 1999
    ...has been held to be a collateral issue not within the scope of deportation, removal, or exclusion proceedings. See, e.g., Hassan v. INS, 110 F.3d 490, 494 (7th Cir. 1997); Pritchett v. INS, 993 F.2d 80, 82 (5th Cir.1993); Conti v. INS, 780 F.2d 698, 702 (7th Cir.1985); Elbez v. INS, 767 F.2......
  • Evangelical Lutheran Church in America v. I.N.S., No. CIV.A. 02-01297 (HHK).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 30 Octubre 2003
    ...held to be a collateral issue not within the scope of deportation, removal, or exclusion proceedings." Id. at 1159 (citing Hassan v. INS, 110 F.3d 490, 494 (7th Cir.1997); Pritchett v. INS, 993 F.2d 80, 82 (5th Cir.1993); Conti v. INS, 780 F.2d 698, 702 (7th Cir.1985); Elbez v. INS, 767 F.2......
  • Nazarova v. I.N.S., No. 97-3261
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 19 Marzo 1999
    ...Nonetheless, whether an immigration proceeding violates due process is a purely legal issue, which we review de novo. Hassan v. INS, 110 F.3d 490, 493 (7th Section 242B of the Immigration and Nationality Act governs this case, which arose before the effective date of the Illegal Immigration......
  • Request a trial to view additional results

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