Sheikh v. Holder , 696 F.3d 147 ( 2012 )

United States Court of Appeals
For the First Circuit
No. 11-2237
MUHAMMAD SALEEM SHEIKH,
Petitioner,
v.
ERIC H. HOLDER, JR., United States Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Howard, Ripple* and Lipez,
Circuit Judges.
Kevin R. Murphy on brief for petitioner.
Tony West, Assistant Attorney General, Civil Division, with
whom Cindy S. Ferrier, Assistant Director and Lindsay M. Murphy,
Attorney, Office of Immigration Litigation, on brief for
respondent.
October 10, 2012
*
Of the Seventh Circuit, sitting by designation.
HOWARD, Circuit Judge. Muhammad Saleem Sheikh, a native
and citizen of Pakistan, seeks review of a final order of removal
issued by the Board of Immigration Appeals ("BIA"). The order came
after the BIA dismissed Sheikh's appeal of an immigration judge's
("IJ") denial of a continuance in his removal proceedings.1 We
deny the petition.
I. Background
Sheikh entered the United States in April 2001 on a non-
immigrant visitor's visa. The visa expired six months later, yet
Sheikh remained in the United States. In the spring of 2003, the
government served him with a notice to appear and initiated removal
proceedings against him under 8 U.S.C. § 1227(a)(1)(B).
In May 2003, Sheikh appeared in the Boston Immigration
Court and obtained a continuance until August. At the August
hearing, after Sheikh's counsel stated that Sheikh would seek
political asylum and that successor counsel would file an
appearance, the matter was reset until September. Due to some
confusion about successor counsel, Sheikh was unrepresented at that
September hearing. Consequently, the IJ reset the hearing once
again, this time for September 2004. At this hearing, the case was
1
Sheik's petition also refers to a claim made under the
Convention Against Torture. As he did not raise this issue before
the BIA, we may not consider it. See 8 U.S.C. § 1252(d)(1); Silva
v. Gonzales, 463 F.3d 68, 72 (1st Cir. 2006) ("Under the exhaustion
of remedies doctrine, theories insufficiently developed before the
BIA may not be raised before this court.").
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again continued at Sheik's request to await the adjudication of a
then-pending labor certification that had been filed by Sheik's
employer in March 2003 for the purpose of obtaining an immigrant
worker visa. Sheik also indicated in his pleadings his intention
to apply for relief in the form of withholding of removal,
voluntary departure, and protection under CAT. Of the three,
Sheikh filed only an application for withholding.
In August 2005, Sheikh moved to withdraw this
application, instead deciding to proceed solely on the basis of his
employment-based (I-140) visa petition. The IJ granted the motion
to withdraw in March 2006, leaving the I-140 petition as Sheikh's
only application before the IJ. The IJ subsequently granted an
additional seven continuances over the next several years as Sheikh
awaited a determination of his I-140 petition. Eventually the
petition was granted and filed with the Immigration Court in
connection with a scheduled March 2010 hearing.
At that hearing Sheikh conceded that he was ineligible to
adjust his immigrant status despite his approved I-140 petition.2
With no hope for adjustment under current law, Sheikh requested a
six-month continuance to await the passage of comprehensive
2
Sheikh is ineligible to adjust his status under both 8
U.S.C. § 1255(c)(2), (k) (denying eligibility to any alien who has
failed to maintain continuous lawful residence for more than 180
days), and 8 U.S.C. § 1255(i) (granting status adjustment
eligibility only to aliens who file an approved labor certification
prior to April 30, 2001).
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immigration reform that would render him eligible for status
adjustment. The IJ denied this request but granted Sheikh ninety
days to sort out his personal affairs.
At the next hearing, in June 2010, Sheikh again requested
a continuance. The IJ denied this request, noting both that the
case had been pending for many years and that Sheikh had no other
pending applications. Moreover, Sheikh again conceded that he was
ineligible for any relief at that time and that he was hoping that
a change in immigration law would inure to his benefit.
Sheikh appealed to the BIA, but did not file a brief or
statement in connection with his appeal. After addressing the
issue of the IJ's denial of continuance, which was the sole issue
raised in Sheikh's Notice of Appeal, the BIA affirmed. It found
that Sheikh had not established good cause for the continuance, as
he was statutorily ineligible for status adjustment. The prospect
of comprehensive immigration reform, the BIA determined, was
insufficient to justify further continuances.
II. Discussion
We review the denial of a continuance for abuse of
discretion. Gomez-Medina v. Holder, 687 F.3d 33, 37 (1st Cir.
2012). Under this deferential approach, we determine whether the
BIA or the IJ "made an error of law or acted in a manner that is
arbitrary and capricious." Cruz-Bucheli v. Gonzales, 463 F. 3d
105, 107 (1st Cir. 2006).
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An "Immigration Judge may grant a motion for continuance
for good cause shown." 8 C.F.R. § 1003.29. Where an alien seeks
a continuance to await a pending visa application and status
adjustment, the BIA has set forth specific standards as to what
constitutes "good cause." These include:
1) the [government's] response to the motion;
2) whether the underlying visa petition is
prima facie approvable; 3) the [alien's]
statutory eligibility for adjustment of
status; 4) whether the . . . application for
adjustment merits a favorable exercise of
discretion; and 5) the reason for the
continuance and other procedural matters.
Matter of Hashmi, 24 I. & N. Dec. 785, 790 (2009); see also Matter
of Rajah, 25 I. &. N. Dec. 127, 135-136 (2009) (adopting the Hashmi
test when reviewing a motion to continue during a pending I-140
petition). In Hashmi, the BIA described these factors as
"illustrative, not exhaustive," and noted that "the focus of the
inquiry is the likelihood that the adjustment application will be
granted." Hashmi, 24 I. & N. at 790.
There was no abuse of discretion in the decision to deny
the motion for continuance under the standards set forth in Hashmi.
It is undisputed that, in its review, the BIA appropriately focused
on Sheikh's eligibility for status adjustment. While Sheikh had
obtained an approved labor certification, he nevertheless was
ineligible for status adjustment. Sheikh argues, however, that his
current ineligibility is only a matter of timing, that
comprehensive immigration reform will render him eligible for
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status adjustment, and this prospect provides good cause for
further continuance. The IJ and the BIA declined to entertain this
argument, and we find no abuse of discretion in that decision.
Courts have repeatedly held that, where eligibility for
status adjustment rests on speculative events, the BIA may properly
deny the continuance. E.g., Thimran v. Holder, 599 F.3d 841, 845
(8th Cir. 2010); Khan v. Attorney General of the United States, 448
F.3d 226, 234-235 (3d Cir. 2006). Hernandez v. Holder is
instructive. In that case, the Eighth Circuit upheld the BIA's
denial of a continuance to await proposed rulemaking. The court
found that "in light of the uncertainty as to when the long-pending
. . . regulation will be promulgated, [petitioner was] essentially
seeking an indefinite continuance." 606 F.3d 900, 904 (8th Cir.
2010).
This case is similar, given that there is no basis in the
record to predict, beyond mere speculation, congressional action
favorable to Sheikh. And here the speculation is three-fold:
whether Congress will pass immigration legislation, whether such
action will occur in the near future, and whether this hypothetical
legislation will allow Sheikh to remain in the United States.
Given these significant uncertainties, Sheikh's hopes for
immigration reform do not warrant forbearance in his removal
proceedings.
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III. Conclusion
For the foregoing reasons, Shiekh's petition for review
is denied.
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