Luevano v. Holder, Jr., No. 10-9547 (10th Cir. 2011)
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Petitioner Margarito Escalera Luevano applied for an adjustment of status during his removal proceedings based on his eligibility for an immigrant visa. He also requested an indefinite continuance in anticipation of the receipt of a visa. The immigration judge (IJ) determined he was not then eligible for adjustment of status and denied the request for a continuance because the anticipated visa would not be available for several years. The Board of Immigration Appeals (BIA) affirmed. Petitioner argued on appeal to the Tenth Circuit that the IJ abused his discretion in denying the requested continuance. He also claimed that the removal proceedings against him should have been terminated because his Fourth Amendment rights were violated. Petitioner admitted to the facts underlying the charge of illegal entry following a stop in Yellowstone National Park by Immigration officials, but withdrew his concession of removability because he believed the section of the Immigration and Nationality Act permitting adjustment of status rendered him nonremovable. The IJ denied his request for adjustment of status because no visa number was available and then ordered removal. Upon review, the Tenth Circuit concluded that although the agency cases permit, and may even require, an IJ to continue proceedings in order to await mere processing of a properly filed visa petition with a current priority date, there was no agency or court precedent for requiring an IJ to grant an indefinite continuance so that a petitioner may remain in this country while awaiting eligibility for adjustment of status. Petitioner was not eligible for adjustment relief at the time of his removal proceedings: "[m]oreover, [Petitioner] was unlikely to be eligible within a reasonably proximate time." Accordingly, the Court denied Petitioner's petition for review and motion to stay removal.
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