Matter of Hashmi
| Citation | 24 I&N Dec. 785 |
| Decision Date | 22 April 2009 |
| Docket Number | File A095 827 197.,Interim Decision No. 3640. |
| Parties | Matter of Ajmal Hussain Shah HASHMI, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
On July 7, 2008, in Hashmi v. Attorney General of U.S., 531 F.3d 256 (3d Cir. 2008), the United States Court of Appeals for the Third Circuit granted the respondent's petition for review of our July 31, 2006, decision, vacated our prior order, and remanded the case to us for further proceedings. Upon further review of the respondent's case, we will sustain the respondent's appeal and remand the record to the Immigration Judge for further proceedings.
The respondent, a native and citizen of Pakistan, entered the United States as a visitor on October 22, 2000. He married a United States citizen in 2001. The respondent was personally served with a Notice to Appear (Form I-862) on July 30, 2003. When he first appeared before the Immigration Judge on September 25, 2003, the respondent, through counsel, admitted the allegations of fact and conceded the charges of removability in the Notice to Appear. He informed the Immigration Judge that he intended to apply for adjustment of status based on his marriage to a United States citizen and the pending Petition for Alien Relative (Form I-130) filed by his wife on his behalf. The Immigration Judge granted the respondent a 4-month continuance to allow time for the United States Citizenship and Immigration Services ("USCIS") of the Department of Homeland Security ("DHS")1 to adjudicate the visa petition.
When the parties reconvened on February 5, 2004, the respondent reported that the I-130 was still pending. He explained that the USCIS interviewed him on November 25, 2003, and the following month he submitted the additional documentation requested by the USCIS. The DHS attorney2 advised that he did not have the respondent's file because it was with the Cherry Hill USCIS office where the respondent had been interviewed. The Immigration Judge granted the respondent a second continuance to give the USCIS additional time to adjudicate the I-130.
The parties reconvened on May 24, 2004, and again reported that the I-130 remained pending. This time the DHS attorney had the respondent's file. The Immigration Judge granted a third continuance to wait for the USCIS to adjudicate the I-130. On August 26, 2004, the Immigration Judge continued the proceedings for a fourth time for the same reason.
At the final removal hearing on March 29, 2005, counsel for the respondent reported that the Cherry Hill USCIS office could not adjudicate the I-130 because the DHS attorney had the file. The respondent sought another continuance, which the DHS did not oppose. The Immigration Judge denied the fifth continuance request. He observed that despite numerous continuances over an 18-month period, the I-130 was still pending and unadjudicated. The Immigration Judge explained that he was expected to complete cases in a reasonable period of time by meeting certain "case completion goals" set by the Department of Justice. The Immigration Judge recognized that the case completion goals are not mandatory, but they are intended to provide case management guidance to Immigration Judges. The respondent appealed.
On July 31, 2006, we adopted and affirmed the Immigration Judge's decision denying the respondent's motion to continue. We agreed with the Immigration Judge that a further continuance was unwarranted in light of the numerous continuances already granted. We also found that the respondent failed to establish that his case was prejudiced because, at the time of our decision, he had yet to proffer an approved I-130. Citing Matter of Sibrun, 18 I&N Dec. 354 (BIA 1983), we recognized that an Immigration Judge's discretionary decision denying a continuance will not be reversed on appeal unless the respondent establishes that the denial caused him actual prejudice and harm, and it materially affected the outcome of his case. Moreover, we found that the adjudication of the I-130 was delayed, in part, because of the respondent's failure to disclose a prior marriage, as well as doubts that were cast on the authenticity of his divorce decree.
The respondent filed a petition for review of our decision with the Third Circuit. First, the court found that the Immigration Judge's denial of the respondent's final continuance request was arbitrary and an abuse of discretion because it was "based solely on case-completion goals," rather than the specific facts and circumstances of the case. Hashmi v. Att'y Gen. of U.S., supra, at 261. Next, the court concluded that our finding that the respondent contributed to the delay in the I-130 adjudication constituted impermissible fact-finding on appeal. See 8 C.F.R. § 1003.1(d)(3)(iv) (2008) (). The case was remanded to us for further proceedings consistent with the court's opinion.
In this case, the respondent sought multiple continuances to afford the USCIS the time and opportunity to adjudicate his I-130, which, if approved, would render him prima facie eligible for adjustment of status. The question presented is what factors should be considered in determining whether the respondent should be allowed to continue ongoing removal proceedings pending the final adjudication of an I-130, which is a prerequisite for adjustment of status. This is a difficult question because of the inherent tension between the conflicting needs to bring finality to the removal proceedings and to give the respondent an opportunity to apply for relief, especially where the respondent may be eligible for lawful permanent resident status through a family-based petition.
The Immigration and Nationality Act does not contain specific statutory authority for the adjudication of motions to continue removal proceedings. Rather, Immigration Judges derive their broad discretionary authority over continuances from the regulations, which state that "[t]he Immigration Judge may grant a motion for continuance for good cause shown." 8 C.F.R. § 1003.29 (2008); see also 8 C.F.R. § 1240.6 (2008) ().
The regulations do not contain a definition of what constitutes good cause. We have defined the parameters of "good cause" in different ways depending on the facts and circumstances presented. For example, in Matter of Sibrun, supra, we set a high standard for adjudicating motions to continue to give the respondent more time to prepare and the opportunity to obtain additional evidence. Under Sibrun, these motions must be accompanied, at a minimum, by a "reasonable showing that the lack of preparation occurred despite a diligent good faith effort to be ready to proceed and that any additional evidence [the alien] seeks to present is probative, noncumulative, and significantly favorable to the alien." Id. at 356; cf. Matter of Silva-Rodriguez, 20 I&N Dec. 448 (BIA 1992) ().
Pertinent to the matter before us, in Matter of Garcia, 16 I&N Dec. 653 (BIA 1978), modified on other grounds, Matter of Arthur, 20 I&N Dec. 475 (BIA 1992), we considered whether a respondent should be granted reopening or a continuance for the adjudication of a pending I-130. We held "that discretion should, as a general rule, be favorably exercised where a prima facie approvable visa petition and adjustment application have been submitted in the course of a deportation hearing or upon a motion to reopen." Id. at 657. In Garcia, the respondent requested reopening of his deportation proceedings pending adjudication of a visa petition filed by his United States citizen wife simultaneously with his application to pursue adjustment of status before the Immigration Judge, who had jurisdiction over that application.3 Garcia aimed to allow a respondent, as the likely beneficiary of a visa petition conferring immediate eligibility for adjustment of status, an opportunity to await the outcome of the visa petition decision before proceedings concluded. Our decision focused on the likelihood of success of the visa petition on the merits, which would result in "a substantial claim to relief from deportation under section 245 of the Act." Matter of Garcia, supra, at 656.
The circuit courts reacted favorably to Garcia, supporting its presumption that discretion should be...
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