Jayoun Min Sheehan v. U.S. Attorney General ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-13780 MARCH 21, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________
Agency No. A089-531-657
JAYOUN MIN SHEEHAN,
llllllllllllllllllllllllllllllllllllllll Petitioner,
versus
U.S. ATTORNEY GENERAL,
llllllllllllllllllllllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(March 21, 2011)
Before BARKETT, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Jayoun Sheehan, a native and citizen of South Korea, seeks review of the
Board of Immigration Appeals’s (“BIA”) decision affirming the Immigration
Judge’s (“IJ”) denial of her request for a continuance of her removal proceedings,
pursuant to 8 C.F.R. § 1003.29. On appeal, Sheehan argues that the IJ abused her
discretion when she denied Sheehan’s request to continue the removal proceedings
to allow the United States Citizenship and Immigration Services (“USCIS”) time
to complete the adjudication of the second I-130 visa petition that Sheehan’s
adoptive mother had filed on her behalf.1
Sheehan was adopted by her U.S. citizen maternal aunt, Chong Ok Sheehan,
in September 2005. In June 2007, Sheehan’s adoptive mother submitted a I-130
Petition seeking a visa for Sheehan as her adopted child. USCIS denied the I-130
in March 2008 on the basis that Sheehan had not established that her adoptive
mother had exercised primary parental control and authority over her for two years
as required by law. The decision cited to numerous pieces of evidence that USCIS
asserted demonstrated that Sheehan’s natural parents had not relinquished primary
1
We have jurisdiction to review an IJ’s decision to deny a motion to continue a removal
hearing. Zafar v. U.S. Att’y Gen., 461 F.3d 1357, 1360-62 (11th Cir. 2006). Additionally, when
the BIA issues a decision, we review only that decision, except to the extent that the BIA
expressly adopts the IJ’s decision, in which case we review the IJ’s decision as well. Al Najjar v.
Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). Thus, to the extent that the BIA agreed with the
IJ’s reasons for not granting Sheehan a continuance of her removal proceedings, we review both
the BIA’s and IJ’s decisions.
2
control over her and also explained that facts pertinent to the adjudication of the I-
130 Petition had been concealed by the adoptive mother, thereby placing doubt on
the reliability of all evidence submitted in support of the I-130 Petition. The
decision stated that the I-130 Petition and supporting documentation had not
established that Sheehan’s adoption was anything but an ad hoc adoption meant to
circumvent the immigration laws. Sheehan did not appeal the denial of the I-130
Petition. She was placed into removal proceedings by the Department of
Homeland Security (“DHS”). Sheehan conceded that she was removable but
requested a continuation of the proceedings on the basis that her adoptive mother
had filed a second I-130 on her behalf that showed she met the two year residence
requirement. The IJ denied Sheehan’s request for a continuance finding that she
was not prima facie eligible for the approval of her second I-130 for the reasons
given by USCIS in its decision on Sheehan’s original I-130.
We review an IJ’s decision to deny a motion for a continuance for an abuse
of discretion. Haswanee v. U.S. Att’y Gen., 471 F.3d 1212, 1214 (11th Cir. 2006).
“Judicial review of denials of discretionary relief incident to [removal]
proceedings . . . is limited to determining whether there has been an exercise of
administrative discretion and whether the matter of exercise has been arbitrary or
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capricious.” Garcia-Mir v. Smith, 766 F.2d 1478, 1490 (11th Cir. 1985)
(quotation marks omitted).
Under the Immigration and Nationality Act (“INA”), a petitioner must file a
I-130 visa petition on behalf of an alien-beneficiary, the purpose of which is “to
establish that there is a legal relationship between the petitioner and the
beneficiary of the I-130, such that the beneficiary is entitled to apply for a change
or adjustment of status based on that legal relationship.” Alvarez Acosta v. U.S.
Att’y Gen., 524 F.3d 1191, 1194 n.6 (11th Cir. 2008).2 According to the BIA, an
I-130 petition filed on behalf of a U.S. citizen’s immediate relative can be
approved if the petitioner establishes: 1) her U.S. citizenship; 2) the bona fides of
the claimed relationship with the beneficiary; and 3) that the family relationship
meets the statutory requirements. Matter of Hashmi, 24 I. & N. Dec. 785, 789
(BIA 2009) (citing 8 C.F.R. §§ 204.1-204.2 (2008)). For purposes of determining
whether an individual is eligible for an immigrant visa as an immediate relative,
the term “immediate relative” includes “children, spouses, and parents of a citizen
of the United States.” 8 U.S.C. § 1151(b)(2)(A)(i). With regard to an adopted
2
Under the INA, the Attorney General has the discretion to adjust the status of an alien
to that of a lawful permanent resident “if (1) the alien makes an application for such adjustment,
(2) the alien is eligible to receive an immigrant visa and is admissible to the United States for
permanent residence, and (3) an immigrant visa is immediately available to [her] at the time [her]
application is filed.” INA § 245(a), 8 U.S.C. § 1255(a).
4
child, the term “child” means a person under the age of twenty-one who was
“adopted while under the age of sixteen years if the child has been in the legal
custody of, and has resided with, the adopting parent or parents for at least two
years.” 8 U.S.C. § 1101(b)(1)(E)(i).
An IJ may grant a continuance “for good cause shown,” 8 C.F.R. § 1003.29,
and in the context of a beneficiary, like Sheehan, who has requested a continuance
while awaiting the adjudication of an I-130 petition, we have stated that
“‘discretion should, as a general rule, be favorably exercised where a prima facie
approvable visa petition and adjustment application have been submitted in the
course of a deportation hearing . . . .’” Bull v. I.N.S., 790 F.2d 869, 872 (11th Cir.
1986) (quoting In re Garcia, 16 I. & N. Dec. 653, 655, 657 (BIA 1978)). We
further recognized that this is not intended to be “an inflexible rule requiring the
immigration judge in all cases to continue deportation proceedings.” Id. at 872(quoting Garcia, 16 I. & N. Dec. at 657). “It clearly would not be an abuse of
discretion for the immigration judge to summarily deny a request for a continuance
. . . upon his determination that the visa petition is frivolous or that the adjustment
application would be denied on statutory grounds or in the exercise of discretion
notwithstanding the approval of the petition.” Id.
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Here, we cannot say that the IJ abused her discretion to deny Sheehan’s
request for a continuance by relying on USCIS’s decision on Sheehan’s original I-
130 Petition to determine that Sheehan failed to establish prima facie eligibility
for the approval of her second I-130. Although USCIS denied the first I-130 on
the basis that Sheehan did not meet the two year residency requirement for an
adopted child, it reached that conclusion based on its finding that Sheehan’s
natural parents had not relinquished primary control of her and that the adoption
was potentially a sham. Sheehan did not challenge USCIS’s findings regarding
the legitimacy of her adoption by appealing the denial of her first I-130, thus we
cannot say that the IJ abused her discretion in crediting the findings and
conclusions in that decision as they pertained to Sheehan’s prima facie eligibility
for her second I-130 visa petition.3
PETITION DENIED.
3
Moreover, the BIA has stated that “Congress did not by its definition intend to recognize
ad hoc adoptions entered into to circumvent immigration laws,” and noted that adoptions, like
marriages, may be entered into simply to facilitate entry into the United States. Matter of
Marquez, 20 I. & N. Dec. 160, 163 (BIA 1990). The BIA has further concluded that an IJ can
look into the bona fides of an adoption to determine whether it was a “sham” even if the adoptive
child and adoptive parent meet the age, legal custody, and residency requirements. Id. at 163-65.
6