Pedreros v. Keisler

• Decision Date: 03 October 2007
• Docket Number: Docket No. 06-3172-AG.
• Citation: 503 F.3d 162
• Parties: Carlos-Humberto Osario PEDREROS, Petitioner, v. Peter D. KEISLER,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

503 F.3d 162

Carlos-Humberto Osario PEDREROS, Petitioner, v. Peter D. KEISLER,^* Attorney General, Respondent.

Docket No. 06-3172-AG.

United States Court of Appeals, Second Circuit.

Submitted: June 14, 2007.

Decided: October 3, 2007.

Lila Sljivar, Wilens & Baker, New York, N.Y., for Petitioner.

Kevin M. Mulcahy, Assistant United States Attorney, for Stephen J. Murphy, United States Attorney for the Eastern District of Michigan, Detroit, MI, for Respondent.

Before LEVAL, CALABRESI, and GIBSON,^** Circuit Judges.

PER CURIAM:

Petitioner Carlos Humberto Osorio-Pedreros ("petitioner" or "Osorio-Pedreros"), a native and citizen of Colombia, petitions for review of the BIA's and IJ's refusal to grant a continuance of his removal proceedings pending an appeal to the BIA of the District Director's denial of an I-130 immigrant visa petition filed on Osorio-Pedreros' behalf. The BIA concluded that the petitioner offered no meaningful argument as to his likelihood of success on appeal of the denial of the I-130 petition and, on this basis, affirmed the IJ's decision. As the BIA was within its discretion in denying the continuance on this ground, the petition for review is denied.

BACKGROUND

Osorio-Pedreros entered the United States without inspection in 1985 and was ordered deported in abstentia in 1986. The petitioner never left the country, and in 1997, he married an American citizen. Shortly thereafter Osorio-Pedreros's wife filed an I-130 immigrant visa petition on his behalf, and Osorio-Pedreros concurrently filed an application to adjust his status to lawful permanent resident based on his marriage to an American citizen.

While these applications were pending, Osorio-Pedreros filed successful motions to reopen the deportation proceedings against him and to transfer the proceedings to New York. In the reopened proceedings, Osorio-Pedreros conceded deportability, and sought no relief except adjustment of status pursuant to 8 U.S.C. § 1255(i) and, in the alternative, voluntary departure. The IJ continued the removal proceedings on multiple occasions over two years in order to give the immigration authorities an opportunity to adjudicate the I-130 petition.

In September 2004, the Citizenship and Immigration Services District Director denied the immigrant visa petition filed on Osorio-Pedreros' behalf. The District Director concluded that Osorio-Pedreros and his wife had not provided sufficient evidence to establish that there was a bona fide marriage and that discrepancies in the couple's answers during the Stokes interview made the bona fides of their marriage "doubtful." Osorio-Pedreros timely appealed this decision to the BIA (the "I-130 appeal").

Subsequently the IJ declined to continue the removal proceedings and ordered the petitioner deported.¹ The IJ explained that while the removal proceedings were properly continued while the I-130 petition was pending in front of the District Director, he believed it was inappropriate to adjourn the removal proceedings once the District Director had denied the petition even though Osorio-Pedreros was appealing that decision to the BIA.

Osorio-Pedreros appealed the IJ's decision to the BIA (the "continuance appeal"). Before considering the separately filed I-130 appeal, the BIA affirmed the IJ's decision, finding that the conclusion that there was no good cause for a continuance was "fully supported by the record and in conformity with general principles of discretion." The BIA, however, did not base its holding solely on the District Director's denial of the I-130 petition. Rather, the BIA also relied on its finding that while Osorio-Pedreros had made conclusory allegations that the District Director's report contained errors, he had not presented "any evidence" challenging the District Director's analysis and detailed summary of the Stokes interview and thus had "failed to support his assertion that the adverse finding was incorrect in any substantial way."

Osorio-Pedreros timely filed a petition for review.

DISCUSSION

Under the immigration regulations, an IJ may grant a motion for a "reasonable" adjournment, or a continuance, for "good cause shown." 8 C.F.R. §§ 1003.29, 1240.45. We review the agency's denial of a continuance for abuse of discretion. Sanusi v. Gonzales, 445 F.3d 193, 199 (2d Cir.2006) (per curiam); see also Morgan v. Gonzales, 445 F.3d 549, 551-552 (2d Cir.2006). An IJ abuses his discretion in denying a continuance if "`(1) [his] decision rests on an error of law (such as application of the wrong legal principle) or a clearly erroneous factual finding or (2)[his] decision — though not necessarily the product of a legal error or a clearly erroneous factual finding — cannot be located within the range of permissible decisions.'" Morgan, 445 F.3d at 551-52 (quoting Zervos v. Verizon New York, Inc., 252 F.3d 163, 169 (2d Cir.2001)) (alterations in original).

Under 8 U.S.C. § 1255(i), an alien who entered the United States without inspection may apply to the Attorney General for the adjustment of his status to that of "an alien lawfully admitted for permanent residence" if he is the beneficiary of an immigrant visa petition filed on his behalf before April 30, 2001. Id.

It is a matter of long-standing and express BIA policy that, as a general matter, an alien is entitled to a continuance of removal proceedings against him while a "prima facie approvable" I-130 immigrant visa petition is pending in front of the District Director. In re Garcia, 16 I & N Dec. 653, 656-7 (BIA 1978); see also Hassan v. INS, 110 F.3d 490, 492-493 (7th Cir.1997) ("[A]n 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."); Bull v. INS, 790 F.2d 869, 872 (11th. Cir.1986) (holding that "the fact that [a] petition for an immigrant visa had not yet been approved at the time that [the petitioner] requested a continuance [is] not, in and of itself, sufficient reason to deny the continuance."). The instant case is not, however, directly covered by the Garcia policy as Osorio-Pedreros' petition is no longer pending in front of the District Director.

Nor is our holding in Morgan, 445 F.3d 549, controlling in the factual circumstances of the instant case. In Morgan, we held that the IJ did not abuse his discretion when he denied a continuance pending the adjudication of a petitioner's second I-130 petition before the District Director, given that the petitioner's first I-130 petition, based on a marriage to the same woman, had already been denied for lack of bona fides. Id. at 552. In Morgan, the petitioner had not appealed the denial of the first I-130 petition, and thus the District Director's determination that the marriage lacked bona fides was the ultimate determination of the issue. In the instant case, the agency as a whole has made no equivalent final determination of the bona fides of the petitioner's marriage: the District Director's initial determination is still actively pending review by the BIA.

We are thus faced with a question of first impression in this Circuit — whether the agency abuses its discretion in not granting a continuance when a petitioner's I-130 petition has been denied by the District Director but an appeal of that decision is still pending in front of the BIA. We need not, however, decide the perhaps difficult question of whether in such a circumstance it would be an abuse of discretion to deny a continuance on the sole ground that the District Director had denied the petition, given the possibility...