Diarra Gakou v. Barr ( 2020 )

19-1410
Diarra Gakou v. Barr
BIA
Montante, IJ
A208 910 349
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
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At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
29th day of April, two thousand twenty.
PRESENT:
Guido Calabresi,
Richard C. Wesley,
Joseph F. Bianco,
Circuit Judges.
_____________________________________
MOHAMED DIARRA GAKOU, AKA MOHAMED
DIARRA, AKA BAYAGI BATCHILLY, AKA
MOHAMMED DIARRA, AKA CHERNO GAYE,
AKA MOHAMAD DIARRA, AKA MUHAMMED
DIARRA,
Petitioner,
v. 19-1410
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: ROBERT F. GRAZIANO, ESQ., Buffalo, NY.
FOR RESPONDENT: NELLE M. SEYMOUR, Trial Attorney
(Jessica E. Burns, Senior Litigation
Counsel, on the brief) for Joseph H.
Hunt, Assistant Attorney General,
Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a Board
of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,
ADJUDGED, AND DECREED that the petition for review is GRANTED.
Petitioner Mohamed Diarra Gakou, a native and citizen of the
Ivory Coast, seeks review of an April 19, 2019 decision of the BIA
affirming a September 17, 2018 decision of an Immigration Judge
(“IJ”) denying his motion to continue proceedings. In re Diarra
Gakou, No. A 208 910 349 (B.I.A. Apr. 19, 2019), aff’g No. A 208
910 349 (Immig. Ct. Buffalo Sept. 17, 2018). We assume the
parties’ familiarity with the underlying facts and procedural
history.
We have reviewed the IJ’s decision as modified and
supplemented by the BIA. See Xue Hong Yang v. U.S. Dep’t of
Justice, 426 F.3d 520, 522 (2d Cir. 2005). We generally “review
the agency’s denial of a continuance for abuse of discretion,”
Flores v. Holder, 779 F.3d 159, 164 (2d Cir. 2015), recognizing
that “IJs are accorded wide latitude in calendar management,”
Morgan v. Gonzales, 445 F.3d 549, 551 (2d Cir. 2006). Because
Diarra Gakou was ordered removed on account of a firearm offense,
however, our jurisdiction is limited to constitutional claims and
questions of law, which we review de novo. 8 U.S.C.
§§ 1227(a)(2)(C), 1252(a)(2)(C), (D); Pierre v. Holder, 588 F.3d
767, 772 (2d Cir. 2009). Diarra Gakou’s argument that the agency
abused its discretion by assessing his motion for a continuance
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under the wrong legal standard raises a question of law over which
we retain jurisdiction. See Flores, 779 F.3d at 163 n.1.
An IJ has discretionary authority to grant a motion for a
continuance “for good cause shown.” 8 C.F.R. § 1003.29. “The
good-cause standard . . . requires consideration and balancing of
all relevant factors in assessing a motion for continuance to
accommodate a collateral matter.” In re L-A-B-R-, 27 I. & N. Dec.
405, 413 (A.G. 2018). The BIA has provided the following non-
exhaustive list of factors relevant to the determination of a
motion for a continuance based on the movant’s intention to apply
for adjustment of status:
(1) the [Government’s] response to the motion; (2)
whether the underlying visa petition is prima facie
approvable; (3) the [movant’s] statutory eligibility for
adjustment of status; (4) whether the [movant’s]
application for adjustment merits a favorable exercise
of discretion; and (5) the reason for the continuance
and other procedural factors.
In re Hashmi, 24 I. & N. Dec. 785, 790 (B.I.A. 2009). The agency
must consider the Hashmi factors in deciding a motion for a
continuance. Freire v. Holder, 647 F.3d 67, 71 (2d Cir. 2011).
The BIA has emphasized that “the focus of the inquiry” should
be on “the likelihood of success on the adjustment application.”
In re Rajah, 25 I. & N. Dec. 127, 136 (B.I.A. 2009); L-A-B-R-, 27
I. & N. Dec. at 413 (“An immigration judge considering a motion
for continuance to await the resolution of a collateral matter
must focus principally on two factors: (1) the likelihood that the
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alien will receive the collateral relief, and (2) whether the
relief will materially affect the outcome of the removal
proceedings.”); Hashmi, 24 I. & N. Dec. at 790 (“[D]iscretion
should be favorably exercised where a prima facie approvable visa
petition and adjustment application have been submitted in the
course of an ongoing removal hearing.”). This Court’s precedent
is in accord. See Pedreros v. Keisler, 503 F.3d 162, 165 (2d Cir.
2007) (“[A]s a general matter, an alien is entitled to a
continuance of removal proceedings against him while a ‘prima facie
approvable’ I-130 immigrant visa petition is pending . . . .”).
The BIA has also held, however, that these “primary” considerations
“are not dispositive” and may be outweighed by “secondary”
considerations, including a movant’s lack of diligence, the
Government’s opposition, and concerns of administrative efficiency
related to the length of the continuance request or the movant’s
detained status. See In re Mayen-Vinalay, 27 I. & N. Dec. 755,
757–60 (B.I.A. 2020); accord L-A-B-R-, 27 I. & N. Dec. at 412
(“Good cause . . . may not exist when the alien has not demonstrated
reasonable diligence in pursuing the collateral adjudication, DHS
justifiably opposes the motion, or the requested continuance is
unreasonably long, among other possibilities.”).
As a preliminary matter, to the extent that the IJ denied a
continuance because he lacked discretion to do so, this was error.
See 8 C.F.R. § 1003.29. However, by citing the regulation stating
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the good-cause standard and cases setting forth the proper multi-
factor standard for exercising discretion to grant a continuance,
the BIA declined to affirm that portion of the IJ’s decision. See
Xue Hong Yang, 426 F.3d at 522 (where the BIA affirms the IJ’s
decision in some respects but not others, we review the IJ’s
decision as modified by the BIA decision).
The BIA affirmed the IJ’s decision based on some of the
relevant Hashmi factors: namely, that there had already been
continuances granted, the case had been pending for more than one
year, Diarra Gakou had sufficient prior opportunity to apply for
relief, and his detained status. However, the BIA committed legal
error by failing to evaluate the other Hashmi factors:
particularly, whether Diarra Gakou’s visa petition was prima facie
approvable, whether he was likely to successfully adjust status if
the petition was approved, and if so, whether the factors that the
agency relied on outweighed these “primary” considerations. See
Freire, 647 F.3d at 71; see also Mayen-Vinalay, 27 I. & N. Dec. at
757 (the agency “must consider and balance all relevant factors in
assessing whether there is good cause to continue proceedings to
accommodate a collateral matter before another authority”
(internal quotation marks omitted)).
Although “an error does not require a remand if . . . it is
clear that the agency would adhere to its prior decision in the
absence of error,” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d
5
315, 338 (2d Cir. 2006), we cannot conclude that remand would be
futile here. First, Diarra Gakou’s visa petition was prima facie
approvable—and has, in fact, been approved. Second, although the
BIA and the Government both emphasized that Diarra Gakou has not
yet shown that he has filed an application for adjustment of
status, and Hashmi directs that an IJ may require the application
and supporting documents in order to establish prima facie
eligibility for adjustment, 24 I. & N. Dec. at 792, Diarra Gakou
argued before the agency that he was statutorily eligible for
adjustment, and the IJ granted an initial continuance without
questioning those arguments or finding that additional
documentation was necessary to establish eligibility.
Finally, the agency could conclude that Diarra Gakou’s
adjustment application would be denied as a matter of discretion
in light of his criminal history. See Pedreros, 503 F.3d at 166
(IJ does not abuse discretion in denying a continuance “upon his
determination . . . that the adjustment application would be denied
. . . in the exercise of discretion notwithstanding the approval
of the petition” (quoting In re Garcia, 16 I. & N. Dec. 653, 657
(B.I.A. 1978)). But the agency did not reach that conclusion, and
there are other factors that might warrant a favorable exercise of
discretion despite Diarra Gakou’s criminal history: he has lived
in the United States for 18 years, his wife and four-year-old child
are U.S. citizens and his mother is a lawful permanent resident,
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he entered the United States legally as a minor, and he was only
13 years old when his visa expired. Accordingly, although the
factors that the agency previously relied upon could be sufficient
to justify denial of a continuance even if it found that these
primary factors favored grant of a continuance, see Mayen-Vinalay,
27 I. & N. Dec. at 757–60, there remains a “realistic possibility
of a different result on remand,” Xiao Ji Chen, 471 F.3d at 338.
For the foregoing reasons, the petition for review is GRANTED,
the BIA’s decision is VACATED, and the case is REMANDED for
additional proceedings consistent with this order. Petitioner’s
separate motion to remand is DENIED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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