Freire v. Holder, Jr., No. 09-0329 (2d Cir. 2011)
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Petitioner, a native and citizen of Brazil, sought review of an order of the Board of Immigration Appeals ("BIA") which dismissed his appeal of an immigration judge's ("IJ") decision ordering his removal and denied his motion for remand or continuance. At issue was whether the BIA abused its discretion in denying petitioner's request for a continuance. The court held that to the extent the BIA denied petitioner's request for a continuance on the basis that it lacked the authority to grant the continuance, the denial constituted legal error where IJs have broad discretionary authority to grant a motion for continuance for good cause shown and where IJs and the BIA had jurisdiction over motions for continuances in removal proceedings where they already had jurisdiction in light of Matter of Hashmi. The court also held that the BIA failed to provide a rational explanation for its ruling when it failed to evaluate the merits of granting or denying petitioner a continuance based on the specific facts on the record and therefore, on remand, the BIA should either follow the Hashmi factors or explain why application of those factors was inappropriate.
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09-0329-ag Freire v. Holder 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2010 (Argued: May 4, 2011 Decided: May 27, 2011) Docket No. 09-0329-ag ALTAIR CLAUDIO FREIRE, Petitioner, v. ERIC H. HOLDER, JR., Attorney General of the United States, Respondent.* Before: MINER, WALKER, and WESLEY, Circuit Judges. Petition for review of a Board of Immigration Appeals decision, which dismissed an appeal from an immigration judge s removal order and denied Petitioner s motion for remand. PETITION GRANTED. JUSTIN CONLON, Law Offices of Justin Conlon, North Haven, CT, for Petitioner. * The Clerk of the Court is directed to amend the official caption in this action to conform with that of this opinion. 1 2 3 4 5 6 7 8 9 10 11 12 LINDSEY CORLISS, Attorney, Office of Immigration Litigation, Civil Division, (Tony West, Assistant Attorney General, Ada E. Bosque, Senior Litigation Counsel, Mona Maria Yousif, Trial Attorney, on the brief), for Respondent Eric H. Holder, Jr., United States Attorney General, Washington, D.C. PER CURIAM: Petitioner Altair Claudio Freire, a native and citizen 13 of Brazil, seeks review of a January 9, 2009 order of the 14 Board of Immigration Appeals ( BIA ), which (1) dismissed 15 Freire s appeal of an April 18, 2006 decision of Immigration 16 Judge ( IJ ) Michael W. Straus ordering Freire s removal to 17 Brazil, and (2) denied Freire s motion for remand or 18 continuance. 19 (B.I.A. Jan. 9, 2009), aff g No. A076 533 611 (Immig. Ct. 20 Hartford, Conn. Apr. 18, 2006). 21 we grant the petition for review. 22 is vacated, and the case is remanded to the BIA for further 23 proceedings consistent with this opinion. 24 25 In re Altair Claudio Freire, No. A076 533 611 For the following reasons, The decision of the BIA I. BACKGROUND Altair Claudio Freire, a native and citizen of Brazil, 26 was paroled into the United States in 1999 as a material 27 witness in a criminal case. In 2002, Freire s employer 2 1 petitioned the United States Citizenship and Immigration 2 Services ( USCIS ) for an employment visa on Freire s 3 behalf. 4 filed, but subsequently withdrew, an application for 5 adjustment of status. USCIS approved that petition in 2003. Freire then 6 In 2005, after Freire s parole status had expired, 7 Freire was served with a Notice to Appear charging him with 8 removability as an arriving alien who was not in possession 9 of a valid entry document at the time of his application for 10 admission. 11 to terminate the proceedings without prejudice so that he 12 could re-file his adjustment application with USCIS. 13 also asked the IJ for a continuance because, in a separate 14 case, this Court was considering the issue of whether 15 arriving aliens were permitted to adjust their status while 16 in removal proceedings. 17 Freire denied his removability and asked the IJ Freire In an oral decision, the IJ denied Freire a 18 continuance. The IJ found that under former 8 C.F.R. § 19 1245.1(a), Freire was not eligible to adjust his status 20 because he was an arriving alien and that there [was] no 21 basis to continue the matter pending a possible Second 22 Circuit decision. 23 ordered his removal to Brazil. The IJ found Freire inadmissible and 3 1 Freire appealed to the BIA. He noted that in May 2006 2 the United States Attorney General had enacted new 3 regulations allowing USCIS to adjudicate the adjustment 4 applications of arriving aliens. 5 submitted evidence that he had filed an adjustment 6 application with USCIS. 7 administratively close or terminate his proceedings while 8 the adjustment application is pending with [USCIS] or, 9 alternatively, suspend making a decision in his case or 10 remand his case to the IJ with instructions to continue his 11 case until a decision from [USCIS] is made on the 12 adjustment application. 13 appeal and denied the motion to remand, finding that 14 [n]either the Board nor the Immigration Judge has 15 jurisdiction over whether [Freire] may adjust his status in 16 this country. 17 not delay the removal proceedings pending USCIS s 18 determination. 19 Additionally, Freire Thus, he asked the BIA either to In 2007, the BIA dismissed the Further, the BIA determined that it could Freire petitioned this Court for review of the agency s 20 denial of his request for a continuance. 21 government entered into a Court-approved joint stipulation 22 to remand the proceedings to the agency to allow the BIA to 23 reconsider Freire s appeal and motion in light of this 4 Freire and the 1 Court s decision in Ni v. BIA, 520 F.3d 125 (2d Cir. 2008). 2 In Ni, we held that an IJ s lack of jurisdiction to 3 adjudicate an arriving alien s adjustment application did 4 not, by itself, provide an adequate reason for the BIA to 5 deny an arriving alien s motion to reopen while the 6 petitioner pursued adjustment of status with USCIS. 7 129 30. 8 policy of granting motions to reopen in order to permit the 9 adjudication of status-adjustment applications. Id. at Additionally, we noted the BIA s established Id. at 131 10 n.4 (citing Matter of Garcia, 16 I. & N. Dec. 653, 657 11 (B.I.A. 1978)). 12 remand to deny the motions to reopen, it should explain how 13 doing so comports with BIA policy in this area. 14 We instructed that if the BIA decided on Id. On remand, the BIA again dismissed Freire s appeal and 15 denied his request for a remand or continuance. 16 stated the following: 17 18 19 20 21 22 23 24 25 26 27 28 29 The BIA We acknowledge that the denial of a motion to reopen or a request for a continuance to await adjudication of an application before the USCIS or some other agency may result in a loss of relief. However, we cannot find it within our authority to grant relief based on an application over which we ultimately have no jurisdiction. To do so would leave us open to the whims and time lines of other agencies which might or might not communicate the outcome of a particular application to us. 5 1 Further, in discussing its departure from Matter of Garcia, 2 the BIA stated that unlike in cases such as Matter of 3 Garcia, here the BIA had neither the authority to assess 4 prima facie eligibility nor the authority to review the 5 denial [of Freire s adjustment of status application] on 6 appeal. 7 grant a continuance or reopening to await a decision over 8 which [it has] no control. 9 Court for review of the BIA s decision. Accordingly, the BIA did not find it judicious to 10 11 Freire timely petitioned this II. DISCUSSION We review only the decision the BIA issued following 12 remand from this Court. See Xia Fan Huang v. Holder, 591 13 F.3d 124, 127 (2d Cir. 2010) (per curiam). 14 BIA s denial of a continuance for abuse of discretion. 15 Sanusi v. Gonzales, 445 F.3d 193, 199 (2d Cir. 2006) (per 16 curiam). 17 rests on an error of law or a clearly erroneous factual 18 finding or if its decision cannot be located within the 19 range of permissible decisions. 20 449, 453 (2d Cir. 2008). We review the See The BIA abuses its discretion if its decision Rajah v. Mukasey, 544 F.3d 21 Freire argues that the BIA abused its discretion in 22 denying his request for a continuance his motion to remand 23 or temporarily terminate removal proceedings while he 6 1 2 sought adjustment of status before the USCIS. We agree.1 To the extent that the BIA denied Freire s request for 3 a continuance on the basis that it lacked the authority to 4 grant the continuance, the denial constitutes legal error. 5 Immigration judges have broad discretionary authority to 6 grant a motion for continuance for good cause shown. 7 8 C.F.R. § 1003.29 (2011). 8 IJs and the BIA do not have jurisdiction to adjudicate most 9 arriving aliens applications for adjustment of status. The BIA correctly stated that See 10 id. § 1245.2(a)(1)(ii). However, that does not prevent IJs 11 or the BIA from adjudicating motions for continuance in 12 removal proceedings over which they already have 13 jurisdiction. 14 790 91 (B.I.A. 2009) (setting forth standards for 15 determining a motion for continuance where a visa petition 16 is pending before USCIS, while recognizing that Immigration 17 Judges do not have jurisdiction to decide visa petitions ). Cf. Matter of Hashmi, 24 I. & N. Dec. 785, 18 Contrary to the government s argument, the BIA s 19 conclusion in Matter of Yauri, 25 I. & N. Dec. 103, 108-10 1 We need not, and do not, address Freire s alternative argument that the Attorney General s regulations preventing IJs from adjudicating arriving aliens applications for adjustment of status are invalid. See Eligibility of Arriving Aliens in Removal Proceedings to Apply for Adjustment of Status and Jurisdiction to Adjudicate Applications for Adjustment of Status, 71 Fed. Reg. 27,585 (May 12, 2006). 7 1 (B.I.A. 2009), that it did not have jurisdiction to grant a 2 motion to reopen based on an arriving alien s application 3 for adjustment of status pending with USCIS is inapposite to 4 this case. 5 authority to reopen proceedings to effectively grant . . . 6 a stay of a final order while the alien pursues an 7 independent adjustment of status application with the 8 USCIS. 9 here, however, where Freire sought a continuance of his There, the BIA concluded that it lacked the Id. at 109. The same reasoning does not apply 10 ongoing removal proceedings rather than a reopening of an 11 administratively final order of removal. 12 stated in Yauri that [t]here can be sound reasons to 13 continue or administratively close proceedings while matters 14 outside the Immigration Judge s jurisdiction are resolved. 15 Id. at 111 n.8. 16 Indeed, the BIA Additionally, to the extent that the BIA relied on its 17 lack of jurisdiction to adjudicate the underlying adjustment 18 of status application as its sole ground for denying Freire 19 a continuance, the BIA repeated the error identified in Ni. 20 In Ni, the BIA denied several motions to reopen removal 21 proceedings on the sole basis that it lacked jurisdiction 22 over the underlying applications for adjustment of status. 23 520 F.3d at 129. In finding that these decisions 8 1 constituted an abuse of the BIA s discretion, we held that 2 rote recital of a jurisdictional statement even if 3 technically accurate does not adequately discharge the 4 BIA s duty to consider the facts of record relevant to the 5 motion and provide a rational explanation for its ruling. 6 Id. at 129 130 (internal quotation marks omitted). 7 Here, the BIA stated that to grant a continuance of 8 removal proceedings based upon an adjustment of status 9 petition pending before another agency would subject the BIA 10 to the whims and time lines of other agencies which might 11 or might not communicate the outcome of a particular 12 application to the BIA. 13 it did not find it judicious to grant a continuance or 14 reopening to await a decision over which [it has] no 15 control. 16 statements still fail to satisfy Ni. 17 explained why it found the grant of a continuance in these 18 types of situations imprudent as a general practice. 19 not evaluate the merits of granting or denying Freire a 20 continuance of his removal proceedings based on the specific 21 facts of this record. 22 494 (8th Cir. 2010) (explaining that in addressing a 23 continuance motion, the BIA was required to consider how Furthermore, the BIA stated that Though they contain some elaboration, the BIA s The BIA simply It did Cf. Clifton v. Holder, 598 F.3d 486, 9 1 the [] evidence [that the petitioner submitted, showing her 2 application for adjustment of status pending before USCIS] 3 might affect the IJ s decision to continue the case ). 4 Several months after it dismissed Freire s appeal, the 5 BIA in a separate matter enunciated a clear standard to 6 guide its exercise of discretion when aliens in removal 7 proceedings request a continuance to apply for adjustment of 8 status. 9 Matter of Rajah, 25 I. & N. Dec. 127, 130 (B.I.A. 2009) See Hashmi, 24 I. & N. Dec. at 790 91; see also 10 (applying Hashmi factors to alien seeking employment-based 11 adjustment of status). 12 adjustment of status application is to be decided by another 13 agency, we see no reason why the BIA should not consider the 14 Hashmi factors in deciding Freire s motion for continuance. 15 Indeed, the very purpose for the continuance requested in 16 Hashmi was to allow USCIS to adjudicate a visa petition that 17 the Immigration Judge[ did] not have jurisdiction to 18 decide. 19 the BIA should either follow the Hashmi factors in 20 determining whether to grant Freire s motion for continuance 21 or explain why application of those factors is inappropriate Although, unlike in Hashmi, Freire s Hashmi, 24 I. & N. Dec. at 791. 10 Thus, on remand, 1 2 in the present case.2 Because the BIA failed to provide a rational 3 explanation for its ruling that is tied to the record, the 4 BIA abused its discretion in denying Freire s motion for 5 remand or continuance. 6 quotation marks omitted). 7 address whether Freire s motion for continuance should be 8 granted; we leave that decision for the BIA to address in 9 the first instance. Ni, 520 F.3d at 129-30 (internal To be clear, as in Ni, we do not Id. at 131.3 If the BIA decides on 10 remand to deny Freire s motion, it must provide adequate 11 reasons for doing so, thereby furnishing this Court with a 12 meaningful opportunity to review any such denial. Id. 2 Moreover, the decision to deny Freire a continuance did not satisfactorily explain its deviation from the BIA s decision in Matter of Garcia, 16 I. & N. Dec. 653, 657 (B.I.A. 1978), modified on other grounds by Matter of Arthur, 20 I. & N. Dec. 475 (B.I.A. 1992), announcing the general rule that a continuance should be granted where an alien establishes his prima facie eligibility for adjustment of status. See Ni, 520 F.3d at 131 n.4 (noting that the BIA needs to explain any departure from Matter of Garcia). The BIA explained that Matter of Garcia did not apply to aliens with applications for adjustment of status pending before other agencies because IJs and the BIA do not have the authority to assess such aliens prima facie eligibility for adjustment. But the BIA gave no explanation as to why it was without authority to consider Freire s prima facie eligibility to adjust status for the purpose of determining whether to grant a continuance. 3 The government cites Scheerer v. U.S. Attorney General, in which the Eleventh Circuit found no abuse of discretion where the BIA denied a request for a continuance based only on the fact that it did not have jurisdiction to adjudicate the alien s adjustment application pending with USCIS. 513 F.3d 1244, 1254 55 (11th Cir. 2008). We do not follow Scheerer to the extent that it is contrary to Ni s holding that recitation of the BIA s lack of jurisdiction to adjudicate the underlying application, without more, constitutes an abuse of discretion. 11 1 2 III. CONCLUSION For the foregoing reasons, the petition for review is 3 GRANTED. The January 9, 2009 decision of the BIA is 4 VACATED, and the case is REMANDED to the BIA for proceedings 5 consistent with this opinion. 12
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