Unpublished Disposition, 846 F.2d 1382 (9th Cir. 1982)
Annotate this CaseNo. 86-7719.
United States Court of Appeals, Ninth Circuit.
Before EUGENE A. WRIGHT and CANBY, Circuit Judges, and WILLIAM H. ORRICK,** District Judge.
MEMORANDUM*
Lilia Cayabyab Grampo petitions for review of the Board of Immigration Appeals's decision affirming an immigration judge's denial of her motion for a continuance of her deportation proceedings. She moved for a continuance in order to petition for visa preference status so she could apply for adjustment of her status to permanent resident. Grampo contends the IJ abused his discretion because he based his denial on the unsupported allegation of the INS that she had entered into a "sham marriage." The petition for review is denied.
FACTS
Grampo, a native and citizen of the Philippines, entered the United States with a visitor's visa on October 1, 1982. In 1984 she married a United States citizen and had her status adjusted to permanent resident. In 1985 she was convicted for embezzlement and sentenced to two years of confinement. The INS issued an order to show cause why she should not be deported because of that conviction for a crime of moral turpitude.1
At the deportation hearing, Grampo sought to file a petition for visa preference status that was unsigned by her United States citizen spouse who was stationed in Korea with the United States Army. The request was denied.
She then requested a continuance of the deportation proceeding to allow her to file a new relative visa petition for preference status to support a new application for adjustment of status.2 That request was also denied. The BIA affirmed the denial of a continuance and dismissed Grampo's appeal.
ANALYSIS
* Standard of Review
An IJ has discretion to grant or deny a motion for continuance. Rios-Berrios v. INS, 776 F.2d 859, 862 (9th Cir. 1985). This court reviews the BIA's affirmance of the denial of a continuance for clear abuse of discretion. Id. Whether a denial of continuance is an abuse of discretion depends on the circumstances of the case and the reasons given for the request. Id.
II
Discussion
Grampo contends the judge abused his discretion because he denied the continuance on the basis of the unsupported assertion that her marriage was a sham. The BIA held that, although the judge's consideration of the unsupported allegation of a sham marriage was error, that was harmless because other reasons also relied on by the IJ supported the denial of the continuance. Specifically, (1) Grampo did not have a prima facie approvable petition for preference status to support an application for adjustment, and (2) she was ineligible for adjustment because she did not have a waiver of excludability.3
An alien spouse of a United States citizen is considered an immediate relative of that citizen. 8 U.S.C. § 1151(b). To obtain a visa, the citizen spouse must first petition the INS for visa preference status for the alien spouse. 8 U.S.C. § 1154(a). The petition must be executed under oath, id., and if the petitioner lives abroad, it must be filed with the overseas office of the Immigration and Naturalization Service "designated to act on the petition." 8 C.F.R. Sec. 204.1(a) (ii) (1987). The purpose of that petition is to classify the alien as an immediate relative. See Gordon & Rosenfield vol. 7 Sec. 44.06 [b] (1987).
After approval of the preference status petition, an alien's status may be adjusted to permanent resident if (1) she applies for adjustment, (2) she is eligible to receive an immigrant visa,4 and (3) an immigrant visa is immediately available.5 8 U.S.C. § 1255(a); Mattis v. INS, 774 F.2d 965, 967 (9th Cir. 1985). An alien who is already in the United States may apply for adjustment of status to permanent residence if she is eligible to receive an immigrant visa. 8 C.F.R. Sec. 245.1 (1987).
If the alien is in deportation proceedings, the application for adjustment of status is adjudicated in those proceedings. 8 C.F.R. Sec. 245.2 (1987). However, an alien claiming immediate relative status is ineligible to apply for adjustment unless she has a valid and approved petition for preference status. 8 C.F.R. 24 5.1(b) (8) (1987).
Grampo did not establish prima facie eligibility to receive a visa because the petition for preference status she proffered was not signed by her husband. It was not valid under 8 U.S.C. § 1154(a),6 and she no longer was the beneficiary of a visa preference. See 8 C.F.R. Sec. 204.4 (1987). Furthermore, she had not obtained a waiver of excludability. Because she was statutorily ineligible for an adjustment of status, it was not an abuse of discretion to deny the continuance. See Rios-Berrios, 776 F.2d at 862 (denial of continuance is reviewed for an abuse of discretion).7
The petition for review is denied.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
The Honorable William H. Orrick, United States District Judge for the Northern District of California, sitting by designation
An alien who has been convicted of a crime of moral turpitude within five years after entry into the United States, and sentenced to confinement for a year or more, is deportable. 8 U.S.C. § 1251(a) (4). The sentencing judge may, however, make a recommendation that the alien not be deported. 8 U.S.C. § 1251(b). Grampo did not receive such recommendation.2 Grampo's husband previously filed a petition for visa preference status on her behalf which the INS approved in 1984. She then applied for, and was granted, adjustment of status to permanent resident. However, because she was found deportable she lost her permanent resident status and the previous petition for preference status no longer conveyed a visa classification to support a new application for adjustment of status. See 8 C.F.R. Sec. 204.4(f) (1987)
An alien may apply for adjustment only if she is not otherwise excludable. Here, Grampo is excludable because she was convicted of embezzlement, a crime of moral turpitude under 8 U.S.C. § 1182(a) (9). An alien excludable under that section, however, may obtain a discretionary waiver of excludability if (1) exclusion would result in extreme hardship to a United States citizen spouse, and (2) admission would not be contrary to national security. 8 U.S.C. § 1182(h). This provision is not, on its face, applicable to deportation proceedings. However, in Cabuco-Flores v. INS, 477 F.2d 108, 111 (9th Cir.), cert. denied, 414 U.S. 841 (1973) the court noted that 8 U.S.C. § 1182(h) also provides relief from deportation; see also Chiaramonte v. INS, 626 F.2d 1093, 1096 (2nd Cir. 1980) (alien requested Sec. 1182(h) relief while in deportation proceedings); but see Hames-Herrera v. Rosenberg, 463 F.2d 451, 453 (9th Cir. 1972) (alien requested stay of deportation so application for immigrant visa, requesting waiver of excludability, could be processed by consulate)
An alien, whose status was previously adjusted, must begin the visa process from the beginning in order to request a waiver. She may not request the waiver as part of a petition for a readjustment of status in the deportation proceedings. See 8 C.F.R. Sec. 204.4 (1987) (petition ceases to convey a visa classification after it has been used to adjust an aliens status to permanent resident); 8 C.F.R. Sec. 245.1(b) (8) (1987) (an alien who claims immediate relative status is ineligible to apply for adjustment "unless the applicant is the beneficiary of a valid unexpired visa petition....").
Eligibility to receive a visa is determined in the petition for visa preference status proceedings. That proceeding also serves to establish a priority date for purposes of visa allocation. See 8 U.S.C. § 1153 (establishing the percentage of visas that may be allocated for various relative classifications)
Availability of a visa depends on the numerical limitation and preference date applicable. There is no numerical limitation on the number of visas that may be granted to alien spouses of United States citizens. 8 U.S.C. § 1151(a)
Her counsel stated only that the husband had authorized the filing
Grampo contends also her Sixth Amendment right to confront witnesses was violated because the IJ considered the government's unsupported allegations. Petitioner's Brief at 6. This contention lacks merit. Even if the IJ erred, the BIA corrected this error and it was harmless. See Quintanilla-Ticas v. INS, 783 F.2d 955, 957 (9th Cir. 1986) (if BIA's analysis is correct, misapplication of standard by IJ is harmless error)
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