Anderson Ferreira v. U.S. Attorney General , 714 F.3d 1240 ( 2013 )

Case: 11-14074 Date Filed: 04/16/2013 Page: 1 of 8
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-14074
________________________
Agency No. A099-982-743
ANDERSON FERREIRA,
llllllllllllllllllllllllllllllllllllllll Petitioner,
versus
U.S. ATTORNEY GENERAL,
llllllllllllllllllllllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(April 16, 2013)
Case: 11-14074 Date Filed: 04/16/2013 Page: 2 of 8
Before TJOFLAT and PRYOR, Circuit Judges, and ROTHSTEIN,* District Judge.
ROTHSTEIN, District Judge:
Anderson Ferreira, a native and citizen of Brazil, sought a continuance of
his deportation proceedings to await the availability of an immigrant visa based on
his approved I-140 petition. After the Immigration Judge denied Ferreira’s motion
for a continuance, he appealed to the Board of Immigration Appeals (“BIA”). The
BIA dismissed the appeal, and Ferreira moved for reconsideration, which was also
denied. Ferreira now seeks review of the BIA’s denial of his motion for
reconsideration. In his petition, Ferreira argues that the BIA abused its discretion
by failing to consider the factors set forth in Matter of Hashmi, 24 I. & N. Dec.
785 (BIA 2009) and Matter of Rajah, 25 I. & N. Dec. 127 (BIA 2009). We agree
that the BIA erred in failing to abide by its own precedent, and, accordingly, grant
the petition, vacate the decision of the BIA, and remand for further proceedings.
I. BACKGROUND
Ferreira was admitted to the United States on a temporary visitor visa that
expired in August 1998. Ferreira remained in the United States, and, on July 3,
2007, the Department of Homeland Security (“DHS”) initiated removal
*
Honorable Barbara J. Rothstein, United States District Judge for the Western District of
Washington, sitting by designation.
2
Case: 11-14074 Date Filed: 04/16/2013 Page: 3 of 8
proceedings by issuing a Notice to Appear (“NTA”). The NTA advised Ferreira
that he was deportable because he had remained in the United States longer than
the authorized period.
During the removal proceedings, a potential employer, Color Factory, Inc.,
filed an I-140 alien-worker petition on Ferreira’s behalf. Ferreira sought a
continuance of his removal proceedings to await a decision by the U.S. Citizenship
and Immigration Services (“USCIS”) on Color Factory, Inc.’s pending I-140 alien-
worker petition. The Immigration Judge granted the continuance but expressed
concern that, even if USCIS granted the I-140 petition, a visa would not be
immediately available to Ferreira due to the backlog in issuing visas. Without the
issuance of a visa, Ferreira would presumably remain removable from the United
States, as he could not apply to adjust his immigration status.
On September 17, 2009, USCIS approved the I-140 petition with a June 2,
2008 “priority date”1 and forwarded it to the Department of State for visa
processing. When Ferreira again appeared before the Immigration Judge, on
February 9, 2010, he requested another continuance in order to allow time for his
1
“[A]n alien’s priority date is the date on which [an alien’s] labor certification is approved,
at which point he is permitted to file an I-140 ‘Immigrant Petition for Alien Worker’ form to
establish his eligibility to file the I-485 form. The Department of State Visa Bulletin is published
monthly and lists cut-off priority dates for different immigration categories and birth countries. Only
those aliens with priority dates before the cutoff date are permitted to file their adjustment of status
applications.” Chacku v. United States Att’y Gen., 555 F.3d 1281, 1283 n.1 (11th Cir. 2008).
3
Case: 11-14074 Date Filed: 04/16/2013 Page: 4 of 8
priority date to become current and for a visa to become available.2 The
Immigration Judge observed that the Department of State Visa Bulletin’s priority
date was then December 15, 2002 – six years from Ferreira’s priority date. The
Immigration Judge found that no good cause existed to continue the proceedings,
“[g]iven that there [was] an extensive period of time before [Ferreira’s] visa
becomes current,” and ordered Ferreira removed to Brazil.
Ferreira appealed the Immigration Judge’s denial of a continuance to the
BIA. The BIA dismissed his appeal, agreeing with the Immigration Judge that
Ferreira had not shown good cause for a continuance given that “an immigrant
visa was not available and would not be for some time.” Like the Immigration
Judge, the BIA noted that Ferreira’s priority date was significantly later than the
then-current date in the Department of State Visa Bulletin.
Ferreria moved the BIA to reconsider its dismissal of his appeal. Ferreira
argued, among other things, that the BIA erred by failing to consider the factors
mandated by Matter of Hashmi, 24 I. & N. Dec. at 790-94 and Matter of Rajah, 25
I. & N. Dec. at 130, when it evaluated his request for a continuance. According to
Ferreira, the BIA only considered one of these factors - Ferreira’s statutory
2
Under 8 C.F.R. § 1245.1(g), an immigrant visa is available when an applicant’s priority
date is earlier than the applicable date in the Department of State Visa Bulletin.
4
Case: 11-14074 Date Filed: 04/16/2013 Page: 5 of 8
eligibility for adjustment of status - when it denied him a continuance based solely
on the unavailability of a visa. The BIA summarily denied Ferreira’s motion for
reconsideration, finding that there was no “material error in law or fact which
would warrant reconsideration.”
Ferreira now petitions this Court for review of the BIA’s denial of his
motion for reconsideration. In doing so, he reasserts his argument that the BIA
erred “in failing to adhere to its own precedent decision in Matter of Hashmi, 24 I.
& N. Dec. 785 (BIA 2009), as required by Matter of Rajah, 25 I. & N. Dec. 127,
136 (BIA 2009).”
II. STANDARD OF REVIEW
We review the BIA’s denial of a motion to reconsider for abuse of
discretion. Calle v. U.S. Att’y Gen., 504 F.3d 1324, 1328 (11th Cir. 2007). When
reviewing the denial of discretionary relief, we consider whether the exercise of
discretion was “arbitrary or capricious.” Garcia-Mir v. Smith, 766 F.2d 1478,
1490 (11th Cir. 1985). The BIA abuses its discretion when it misapplies the law
in reaching its decision. See Arce v. Garcia, 434 F.3d 1254, 1260 (11th Cir.
2006). The BIA can also abuse its discretion by not following its own precedents
without providing a reasoned explanation for doing so. Montano Cisneros v. U.S.
Att’y Gen., 514 F.3d 1224, 1226 (11th Cir. 2008).
5
Case: 11-14074 Date Filed: 04/16/2013 Page: 6 of 8
III. DISCUSSION
Pursuant to the immigration regulations, an Immigration Judge (“IJ”) “may
grant a continuance ‘for good cause shown.’” Chacku v. U.S. Att’y Gen., 555 F.3d
1281, 1285 (11th Cir. 2008) (quoting 8 C.F.R. § 1003.29). In Matter of Rajah, the
BIA “articulat[ed] the factors that an Immigration Judge and the Board should
consider in determining whether [an alien] has established good cause for a
continuance to apply for adjustment of status based on a pending labor
certification or employment-based immigrant visa petition.” 25 I & N. Dec. at
128. Specifically, “the Immigration Judge should first determine the [alien’s]
place in the employment-based adjustment of status process and then consider and
balance” certain factors that the BIA had previously identified in Matter of
Hashmi, “if applicable, and any other relevant considerations.” Rajah, 25 I. & N.
Dec. at 130. The Rajah/Hashmi factors include, but are not limited to:
(1) the [government’s] response to the motion [for a continuance]; (2)
whether the underlying visa petition is prima facie approvable; (3) the
respondent’s statutory eligibility for adjustment of status; (4) whether
the respondent’s application for adjustment merits a favorable exercise
of discretion; and (5) the reason for the continuance and other
procedural factors.
Id. (citing Hashmi, 24 I. & N. Dec. at 790).
The focus of the inquiry into the factors is the likelihood of success on the
6
Case: 11-14074 Date Filed: 04/16/2013 Page: 7 of 8
adjustment application. Id. Thus, the BIA explained in Rajah, an alien “who has a
prima facie approvable I-140 and adjustment application may not be able to show
good cause for a continuance because visa availability is too remote.” Id. at 136
(citing Chacku, 555 F.3d 1281). However, the BIA stated that, even under those
circumstances, “the [IJ] must evaluate the individual facts and circumstances
relevant to each case.” Id. Similarly, the BIA held that “[i]n evaluating good
cause for the continuance premised on a pending labor certification or I-140, all
the factors relevant to the alien’s adjustment eligibility should be considered and
articulated.” Id. at 137.
Here, the BIA’s determination that Ferreira did not show good cause for a
continuance was based solely on the fact that “an immigrant visa was not available
and would not be for some time.” The BIA did not articulate or weigh all of the
Rajah/Hashmi factors in Ferreira’s case, as required by the BIA’s own precedent.
See Rajah, 25 I. & N. Dec. at 130, 136-37. While the BIA properly considered
the fact that an immigrant visa was not immediately available, the BIA erred by
limiting its analysis to only that factor. Thus, the BIA, without any reasoned
explanation, failed to apply its own precedent when it denied Ferreira’s motion for
a continuance. Accordingly, the BIA abused its discretion in denying Ferreira’s
motion for reconsideration. See Montano Cisneros, 514 F.3d at 1226; Arce, 434
7
Case: 11-14074 Date Filed: 04/16/2013 Page: 8 of 8
F.3d at 1260.
IV. CONCLUSION
We GRANT the petition for review, VACATE the decision of the BIA, and
REMAND to the BIA for further proceedings.
8