Jorge Benavides-Guzm v. Atty Gen USA ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
1-27-2009
Jorge Benavides-Guzm v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-2992
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-2992
___________
JORGE BENAVIDES-GUZMAN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
___________________________
Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(Agency No. A75-967-620)
Immigration Judge: Annie S. Garcy
__________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 6, 2008
Before: RENDELL, FUENTES and NYGAARD, Circuit Judges
(Filed: January 27, 2009)
___________
OPINION OF THE COURT
___________
PER CURIAM
Petitioner Jorge Benavides-Guzman, a native and citizen of Bolivia, was admitted
into the United States on July 6, 1996 as a visitor with authorization to remain until
August 30, 1996. A Notice To Appear was filed in Immigration Court on September 19,
2003, which alleged that he was removable under Immigration & Nationality Act (“INA”)
§ 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), as an alien who failed to depart prior to the
expiration of his authorized stay. Insofar as Benavides-Guzman had married a United
States citizen on March 19, 1997, he, through counsel, sought and received a continuance
from the Immigration Judge in order for his wife to file an alien relative visa petition and
adjustment of status application. The first such petition was denied; a second visa
petition was filed on March 15, 2004. On October 30, 2006, his wife’s second visa
petition was denied by the District Director for the United States Citizenship and
Immigration Services (“USCIS”) on the ground that the couple did not share a common
life together. The District Director’s decision notes 19 serious discrepancies in the
couple’s interview statements. When the couple was confronted with the discrepancies,
they could offer no convincing explanation for their contradictory answers. The District
Director concluded that the marriage was strictly for Benavides-Guzman to procure
permanent residence in the United States “since a couple engaged in a bonafide marital
relationship would never have had such discrepancies regarding not only their home but
also their activities as a couple.” A.R. 108.
Benavides-Guzman appeared before the IJ with his counsel on November 20,
2006.1 He admitted the factual allegations and conceded removability, but, in seeking
1
The transcript in the Administrative Record apparently is incorrectly dated July 27,
2004.
2
another continuance, he testified that his wife gave inconsistent answers at her adjustment
of status interviews because she is a drug addict. Her drug problem had been ongoing
throughout their ten year marriage. He blamed his wife’s poor memory and inaccurate
testimony at the interview on “all the things that happened to her.” A.R. 90.
Furthermore, his wife was 5 weeks pregnant and the pregnancy was evidence that the
marriage was bonafide. Therefore, if he could have another continuance he would seek
reconsideration with the District Director regarding the denial of the visa petition.
After consideration of the record evidence and testimony, on that same day, the IJ
denied any further continuances and ordered Benavides-Guzman removed to Bolivia.2
His application for voluntary departure was granted. The IJ noted that Benavides-
Guzman’s wife had not yet appealed the District Director’s decision denying the visa
petition, notwithstanding the request for a postponement of removal proceedings.
Nevertheless, the IJ considered the request to continue the case in order to allow
Benavides-Guzman’s counsel to approach USCIS to ask it to reopen or reconsider its
denial of the visa petition. The IJ also considered Benavides-Guzman’s stated hope that
the pregnancy would change matters in the couple’s relationship, and considered that his
wife might have trouble with her memory due to her substance abuse problem. However,
the IJ ultimately concluded that good cause did not exist to continue the removal
proceedings. The IJ pointed out that Benavides-Guzman’s wife had not appeared at the
2
The IJ’s written decision apparently is also incorrectly dated July 27, 2004.
3
hearing on the motion to postpone, and had not communicated with the Immigration
Court concerning her desires or intentions surrounding the visa petition. Furthermore, she
had not made any movement toward filing an appeal from the visa petition. There thus
was insufficient evidence to establish that additional efforts would be made to prosecute a
visa petition on Benavides-Guzman’s behalf, and consequently a lack of good cause
shown to justify further continuance.
Benavides-Guzman appealed, with the assistance of counsel, to the Board of
Immigration Appeals, contending that the IJ abused her discretion and violated his right
to due process by denying his request for a continuance. In a decision dated June 11,
2008, the Board affirmed without opinion, 8 C.F.R. § 1003.1(e)(4). Benavides-Guzman
has timely petitioned for review pro se.
We will deny the petition for review. Our authority to review a final removal order
of the Board arises under INA § 242(a), 8 U.S.C. § 1252(a). Benavides-Guzman
contends that the IJ abused her discretion and violated his right to due process by denying
him a continuance so that his wife could appeal the denial of her relative petition filed
on his behalf, and thus attempt to qualify him for adjustment of status. He contends that
he met the requirements for postponement and that his now twelve year marriage is
bonafide.
When the Board summarily affirms and defers to an IJ’s decision, we review the
IJ’s decision to assess whether the Board’s decision to defer was appropriate. See
4
Abdulai v. Ashcroft, 239 F.3d 542, 549 n.2 (3d Cir. 2001). An IJ "may grant a motion for
continuance for good cause shown." 8 C.F.R. § 1003.29. In Khan v. U.S. Attorney Gen.,
448 F.3d 226 (3d Cir. 2006), we held that we have jurisdiction to review the denial of a
continuance because denials of motions to continue are not statutorily-proscribed
discretionary acts. Id. at 231 (internal quotations and citation removed). We review the
denial of a continuance for abuse of discretion. See Ponce-Leiva v. Ashcroft, 331 F.3d
369, 377 (3d Cir. 2003). We exercise plenary review over procedural due process claims.
See Singh v. Gonzales, 432 F.3d 533, 541 (3d Cir. 2006); Bonhometre v. Gonzales, 414
F.3d 442, 446 (3d Cir. 2005).
We conclude that the IJ did not abuse her discretion in denying the motion for
postponement, nor was Benavides-Guzman’s right to due process violated. An IJ’s
discretion to continue a hearing should be favorably exercised where a prima facie
approvable visa petition has yet to be approved and a prima facie approvable adjustment
of status has been submitted, see Matter of Garcia, 16 I. & N. Dec. 653, 656-57 (BIA
1978), modified on other grounds by Matter of Arthur, 20 I. & N. Dec. 475 (BIA 1992)
(addressing marriages that were entered into after commencement of removal
proceedings), but the alien must have a visa immediately available to him, INA § 245(a),
8 U.S.C. § 1255(a). Benavides-Guzman did not have an approved visa petition and no
visa was immediately available to him because his wife’s visa petition was denied. The IJ
had discretion to deny any request for a continuance on this basis, see Khan, 448 F.3d at
5
234-35 (citing Onyeme v. Immigration & Naturalization Serv., 146 F.3d 227, 234 (4th
Cir. 1998)). Benavides-Guzman is presently ineligible for an immigrant visa, and he
cannot show that one will be available to him at some estimable time in the future. Id.
Furthermore, prior to the denial of his wife’s petition, the IJ granted continuances,
and in denying any further continuances, she explained her reasons in detail and throughly
considered Benavides-Guzman’s claims. There was, as the IJ concluded, a lack of good
cause shown to justify any further delay. In evaluating any request for an adjournment or
continuance, the IJ could reasonably have relied on the decision by the District Director
denying the relative petition without speculating about whether an appeal of the decision
would have arguable merit. Cf. Khan, 448 F.3d at 235 (when all that petitioner offers is
speculative possibility that at some future point he may receive labor certification, he has
failed to demonstrate that he has a visa petition immediately available to him).
Finally, although aliens facing removal are entitled to due process, see Kamara
v. U.S. Attorney Gen., 420 F.3d 202, 211 (3d Cir. 2005), what is required is that an alien
be provided with a full and fair hearing and a reasonable opportunity to present evidence,
see Singh v. Gonzales, 432 F.3d 533, 541 (3d Cir. 2006). We have carefully reviewed the
record and conclude that Benavides-Guzman was provided such an opportunity. His due
process argument “merely recasts his abuse-of-discretion argument ... and can be denied
for the reasons already stated.” Khan, 448 F.3d at 236. Benavides-Guzman cannot show
that he has been prejudiced by the IJ's denial of his postponement motion because there is
6
no evidence as to when, if ever, the denial of his wife’s visa petition might be appealed,
let alone reversed. See Singh, 432 F.3d at 541 (to prevail on due process claim alien must
show substantial prejudice).
We will deny the petition for review.
7