Bandar Karsh v. William P. Barr ( 2019 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 19a0624n.06
No. 12-4053
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Dec 17, 2019
BANDAR ABU KARSH, )
DEBORAH S. HUNT, Clerk
)
Petitioner, )
) ON PETITION FOR REVIEW
v. ) FROM THE UNITED STATES
) BOARD OF IMMIGRATION
WILLIAM P. BARR, Attorney General, ) APPEALS
)
Respondent. )
ORDER
Before: WHITE, STRANCH, and NALBANDIAN, Circuit Judges.
Bandar Abu Karsh, a native of Saudi Arabia and citizen of Jordan, petitions through
counsel for review of a decision of the Board of Immigration Appeals (“BIA”). The parties have
waived oral argument, and this panel unanimously agrees that oral argument is not needed. See
Fed. R. App. P. 34(a).
In 2007, the United States admitted Karsh on a student visa so that he could attend the
University of Toledo. He received approval to transfer to the University of Bridgeport and begin
classes in the spring of 2008. When he failed to enroll, the University of Bridgeport terminated
his enrollment and the Department of Homeland Security personally served him with a notice to
appear.
At a hearing on May 6, 2009, Karsh conceded removability, but stated that he had married
a United States citizen (Helen Caballero) and was seeking an adjustment of status on that basis
under an I-130 petition filed by his wife. The immigration judge (“IJ”) granted the first of seven
continuances related to the I-130 petition.
No. 12-4053, Karsh v. Barr
In 2010, the United States Citizenship and Immigration Services issued a notice of intent
to deny the I-130 petition for various reasons, which included: Caballero’s prior marriage for the
admitted purpose of obtaining an immigration benefit for her first husband; her second marriage
to a man who the United States had deported; Karsh’s and Caballero’s conflicting responses at an
interview; and lack of evidence of commingled financial resources. Although Caballero responded
to the notice, the I-130 petition was denied because her response addressed few discrepancies from
the interview, the marriage occurred after Karsh was in removal proceedings, and there was little
evidence that Karsh had a financial stake in Caballero’s residence. Thus, Caballero failed to
establish by clear and convincing evidence that she had not entered into her marriage to Karsh for
immigration purposes. See Immigration and Nationality Act § 245(e)(3) (codified at 8 U.S.C.
§ 1255(e)(3)). Caballero appealed and filed a second I-130 petition. The appeal of the first I-130
petition was denied in 2011.
Upon learning of the pending second I-130 petition at a hearing, the government objected
to any further continuances. Karsh’s attorney responded that Caballero had since received a
diagnosis of schizophrenia, that her schizophrenia had caused behavior contributing to the denial
of the first I-130 petition, and that she now received medication. In an oral decision, the IJ declined
to grant a continuance because there was “no reason to believe from the evidence presented” that
an IJ would adjudicate the second I-130 petition differently. On October 5, 2011, the IJ ordered
Karsh’s removal. In 2012, the BIA affirmed the IJ’s decision without opinion, and the United
States removed Karsh to Jordan.
Karsh filed this appeal, arguing that: (1) the IJ erred by denying the last continuance;
(2) the BIA incorrectly held that the IJ acted reasonably when confronted with translation
difficulties; and (3) the BIA erred by affirming the IJ’s decision without opinion. This court stayed
proceedings during the pendency of the second I-130 petition until 2019, when Karsh discontinued
his efforts to gain readmission to the United States.
“When the BIA affirms an IJ’s decision without issuing its own opinion, we review the IJ’s
decision directly as the final administrative order.” Suarez-Diaz v. Holder, 771 F.3d 935, 941 (6th
Cir. 2014) (citing Hasan v. Ashcroft, 397 F.3d 417, 419 (6th Cir. 2005)).
-2-
No. 12-4053, Karsh v. Barr
We review an IJ’s denial of a request for a continuance for an abuse of discretion. Ilic-Lee
v. Mukasey, 507 F.3d 1044, 1047 (6th Cir. 2007). “An abuse of discretion occurs if ‘the denial . . .
was made without a rational explanation, inexplicably departed from established policies, or rested
on an impermissible basis such as invidious discrimination.’” Id. (quoting Abu-Khaliel v.
Gonzales, 436 F.3d 627, 634 (6th Cir. 2006)). Factors that an IJ can consider in deciding whether
to grant a continuance include, among other things, the government’s opposition to a continuance,
the likelihood of success on the merits, and the number and length of continuances previously
granted. Young Hee Kwak v. Holder, 607 F.3d 1140, 1144–45 (6th Cir. 2010); see also Kaddoura
v. Holder, 472 F. App’x 367, 372 (6th Cir. 2012).
We conclude that the IJ did not abuse his discretion by denying Karsh’s motion for a
continuance. The government opposed the continuance, the seven prior continuances delayed
proceedings for 2½ years, and the likelihood of success on the merits on the second I-130 petition
was low for the same reasons that the first I-130 petition was denied.
We decline to address Karsh’s argument that the BIA incorrectly held that the IJ acted
reasonably when confronted with translation difficulties. Karsh fails to elaborate on his argument
in his brief, and “[i]ssues adverted to in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived.” McPherson v. Kelsey, 125 F.3d 989, 995 (6th Cir.
1997).
Finally, we conclude that the BIA acted permissibly by affirming the IJ’s decision without
an opinion. Summary affirmance is authorized by federal regulation and we have reaffirmed on
numerous occasions that streamlined BIA review does not violate due process. See 8 C.F.R.
§ 1003.1(e)(4); Denko v. INS, 351 F.3d 717, 730 (6th Cir. 2003); see also Melchor-Reyes v. Lynch,
645 F. App’x 381, 386 (6th Cir. 2016).
For these reasons, we DENY Karsh’s petition for review.
ENTERED BY ORDER OF THE COURT
Deborah S. Hunt, Clerk
-3-