Yaya Toure v. William P. Barr ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18‐3634
YAYA TOURE,
Petitioner,
v.
WILLIAM P. BARR,
Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A200‐363‐680.
____________________
ARGUED MAY 15, 2019 — DECIDED JUNE 7, 2019
____________________
Before WOOD, Chief Judge, and EASTERBROOK and
HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. The issue in this petition for judi‐
cial review is whether the immigration judge abused her dis‐
cretion by denying a motion to continue a removal hearing.
Petitioner Yaya Toure concedes he is removable. He sought to
delay his hearing so that he could belatedly seek lawful per‐
manent residence based on his brief marriage to a United
2 No. 18‐3634
States citizen, a marriage that immigration authorities had in‐
vestigated and found to have been a sham. Denial of his re‐
quest for a continuance was not an abuse of discretion, so we
deny the petition.
I. Facts & Procedural History
Yaya Toure was born in Cote D’Ivoire and is a citizen of
Mali. He entered the United States on a tourist visa on January
6, 2007. On June 8, 2009, he married Latasha Wolfe, a United
States citizen. Conditional on his marriage, the United States
Citizen and Immigration Services (“USCIS”) granted Toure
permanent resident status on December 17, 2009. In Septem‐
ber 2011, Toure and Wolfe filed a joint I‐751 petition to remove
the conditions on residence pursuant to 8 U.S.C. § 1186a(c)(1).
If granted, the joint petition would have modified Toure’s sta‐
tus so that his residence in the United States would no longer
have been contingent upon his marriage to Wolfe.
In considering that joint petition, USCIS interviewed
Toure and Wolfe. The agency issued a Notice of Intent to
Deny the petition because the marriage seemed to have been
motivated by immigration benefits. Toure and Wolfe lived in
the same city but were not living together. When they were
asked basic questions about each other’s lives, their answers
conflicted directly. USCIS explained that the couple bore the
burden of proving the marriage was not entered into primar‐
ily to obtain immigration benefits.
In response, Toure submitted an affidavit asserting that
his marriage was bona fide, and Wolfe and Toure’s attorney
also submitted letters saying the marriage was legitimate.
USCIS responded on March 15, 2013, finding that the addi‐
tional evidence was insufficient to rebut its initial finding.
No. 18‐3634 3
After denying Toure’s motion to reconsider, the agency de‐
nied the joint I‐751 petition and terminated his conditional
permanent resident status pursuant to 8 U.S.C. § 1186a(b). On
July 18, 2013, the Department of Homeland Security (“DHS”)
served Toure with a Notice to Appear, advising him that he
was subject to removal from the United States under 8 U.S.C.
§ 1227(a)(1)(D)(i).
On March 12, 2014, Toure appeared before an immigration
judge for his master calendar hearing (a brief initial appear‐
ance before an immigration judge to determine how the case
will proceed). Toure conceded he was removable as charged,
but he said that he and Wolfe were still married and that they
both intended to proceed with the joint filing, despite the ad‐
verse finding by USCIS. He and his lawyer did not tell the im‐
migration judge, however, that he and Wolfe had actually
been separated for several months at that time. The immigra‐
tion judge set the merits hearing on the joint petition for more
than three years later, on August 16, 2017. The judge in‐
structed Toure that “if something changes, for a waiver … you
have to file” a new petition with USCIS. Toure’s attorney as‐
sured the immigration judge that he would submit the waiver
to the immigration court if Toure’s status changed. The court
also instructed Toure and his lawyer that any additional fil‐
ings needed to be received by the court at least fifteen days
before the scheduled hearing.
On December 3, 2014, Toure and Wolfe divorced. The de‐
cree listed the date of their separation as December 2, 2013,
more than three months before Toure’s first appearance be‐
fore the immigration judge. Neither Toure nor his attorney in‐
formed the immigration court of this change in status.
4 No. 18‐3634
On July 11, 2017, nearly two and a half years after his di‐
vorce and only a month before the long‐scheduled hearing on
the merits of his removal, Toure filed a new I‐751 petition, this
time requesting a waiver of the joint‐filing requirement pur‐
suant to 8 U.S.C. § 1186a(c)(4)(B), which allows waiver of the
joint‐filing requirement if the marriage has ended in divorce.
Not until the day of the scheduled merits hearing, however,
did Toure inform the immigration judge of this new petition
and request a continuance of the merits hearing to allow
USCIS time to adjudicate his new, solo I‐751 petition and
waiver request. Immediately before the hearing, counsel for
DHS indicated to Toure’s attorney that the agency would con‐
sent to a continuance.
The immigration judge, however, denied the oral motion
to continue, finding that Toure did not show good cause for
the continuance as required by 8 C.F.R. § 1003.29. The judge
rejected Toure’s explanation for failing to disclose the changes
in his status in a timely manner or to request a continuance
fifteen days ahead of the hearing, as required. Toure’s counsel
explained that he did not feel it was important to tell the court
about the separation since they were not yet divorced and
there was a chance they might reconcile. The judge rejected
this argument. Toure was represented by the same attorney in
both his immigration and divorce proceedings, meaning
counsel knew during the March 2014 hearing that the
marriage—which USCIS had already deemed a sham—was
also in danger of ending very soon. The judge stated her view
that Toure needed to disclose this information before the
merits hearing. It also came to light that Toure had had to
serve the 2014 divorce decree on Wolfe by publication. He did
not know where she lived.
No. 18‐3634 5
The judge emphasized that Toure had three years between
hearings to notify the immigration court of his divorce, to sub‐
mit a waiver, or to request a continuance. Toure’s attorney
tried to take the blame, explaining that the delay was due to
the length of time between hearings and that the failures to
take more timely action were “human error” because he was
a sole practitioner. The immigration judge found that coun‐
sel’s reasons did not demonstrate good cause and denied the
motion to continue. The immigration judge explained that she
did not have jurisdiction over Toure’s new I‐751 petition and
thus he had no pending matters before the immigration court.
The judge then ordered Toure removed to Mali under 8 U.S.C.
§ 1227(a)(1)(D)(i).
The Board of Immigration Appeals dismissed Toure’s ap‐
peal. Citing Matter of L‐A‐B‐R‐, 27 I & N Dec. 405 (A.G. 2018),
the Board found that the immigration judge properly denied
the request for continuance because the motion was untimely
and good cause was not shown. More specifically, the Board
dismissed the appeal because Toure’s petition for a waiver
came nearly three years after his divorce and he did not re‐
quest a continuance for USCIS to adjudicate the 2017 waiver
application until the day of the hearing. The Board found the
only reason offered for the delay—that his attorney is a sole
practitioner who inadvertently failed to notify the immigra‐
tion court of the changes in his case—did not satisfy the good
cause requirement. Toure petitioned this court for review.1
1 We were told at oral argument that Toure has left the United States
and entered Canada. We have considered whether we should exercise our
discretion to invoke the fugitive disentitlement doctrine to dismiss his pe‐
tition for judicial review. See Gutierrez‐Almazan v. Gonzales, 453 F.3d 956
(7th Cir. 2006) (declining to invoke doctrine where petitioner failed to
6 No. 18‐3634
II. Analysis
A. Scope of Jurisdiction
Our jurisdiction to review a final order of removal under
8 U.S.C. § 1252(a)(1) extends to whether the Board erred in af‐
firming the denial of a continuance which led to a final order.
Cadavedo v. Lynch, 835 F.3d 779, 782 (7th Cir. 2016), citing
Calma v. Holder, 663 F.3d 868, 877 (7th Cir. 2011). Our review
of the immigration court’s decision would be “foreclosed by
§ 1252(a)(2)(B)(i) only if the agency’s rationale for denying the
procedural request also establishes the petitionerʹs inability to
prevail on the merits of his underlying claim.” Calma, 663 F.3d
at 876. We have jurisdiction to review “the denial of a contin‐
uance that is sought for purposes of allowing another agency
to complete its review.” Id. at 877.
B. Denial of the Continuance
We review the denial of a motion to continue for abuse of
discretion. Giri v. Lynch, 793 F.3d 797, 800–01 (7th Cir. 2015).
When the immigration judge gives a reason for her decision
to deny the continuance, “this court will uphold the decision
unless it was made without a rational explanation, inexplica‐
bly departed from established policies, or rested on an imper‐
missible basis.” Id. at 801, quoting Calma, 663 F.3d at 878.
appear for removal on bad advice of lawyer and had since been taken into
federal custody); Sapoundjiev v. Ashcroft, 376 F.3d 727 (7th Cir. 2006) (in‐
voking doctrine where non‐citizens failed to appear for removal and did
not voluntarily submit to custody in United States within two months af‐
ter government invoked doctrine). The main goal of the proceeding was
to remove Toure from the United States, and that goal has apparently been
accomplished. The case is not moot, though, because affirming the legality
of the removal order will have legal consequences if Toure tries to return
to the United States in the future.
No. 18‐3634 7
Because the Board of Immigration Appeals supplemented the
immigration judge’s reasoning rather than simply adopting
her decision, we review the judge’s decision as supplemented
by the Board’s. Giri, 793 F.3d at 800.
Toure argues that the immigration judge and Board
should have granted the continuance to allow USCIS time to
adjudicate his second I‐751 petition. He also asserts that they
abused their discretion in allowing DHS to renege on its
agreement to the continuance because DHS counsel was not
ready for the scheduled merits hearing.
“The Immigration Judge may grant a motion for continu‐
ance for good cause shown.” 8 C.F.R. § 1003.29. Concerned
that “[u]njustified continuances” were being used to “provide
an illegitimate form of de facto relief from removal,” the At‐
torney General has recently emphasized that this regulation
allows an immigration judge to grant a motion for continu‐
ance only if good cause is shown. Matter of L‐A‐B‐R‐, 27 I. & N.
Dec. 405, 411 (A.G. 2018).
At least until recently, the Board said that an immigration
judge should consider the following factors when evaluating
whether to grant a continuance to give another agency time
to adjudicate a collateral matter: “’(1) the DHS response to the
motion; (2) whether the underlying visa petition is prima facie
approvable; (3) the respondent’s statutory eligibility for ad‐
justment 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 fac‐
tors.’”Cadavedo, 835 F.3d at 783, quoting Matter of Hashmi, 24 I.
& N. Dec. 785, 790 (BIA 2009).
8 No. 18‐3634
Between the immigration judge’s and Board’s decision in
Toure’s case, the Attorney General changed this standard in
Matter of L‐A‐B‐R‐, explaining that “immigration courts
should continue to apply a multifactor test to assess whether
good cause exists for a continuance for a collateral proceed‐
ing, but that the decision should turn primarily on the likeli‐
hood that the collateral relief will be granted and will materi‐
ally affect the outcome of the removal proceedings.” 27 I. &
N. Dec.at 412.
Under either standard, we find no abuse of discretion
here. The immigration judge and Board gave rational reasons
for the denial. They did not depart inexplicably from estab‐
lished policies, and there is no indication that they rested their
decisions on an impermissible basis.
First, though DHS initially agreed to the continuance, it
opposed Toure’s motion once the timeline of relevant events
became clear. Toure gives great weight to the initial agree‐
ment and argues it was grounds for a continuance. We assume
that the agreement might have been sufficient to have permit‐
ted a continuance, but it did not require the judge to grant the
continuance. The immigration judge is required to find good
cause for the continuance and is not required to grant one
merely because the parties agree to one. L‐A‐B‐R‐, 27 I. & N.
Dec. at 416 (immigration judge need not treat DHS’s position
on requested continuance as controlling: “the regulation does
not include an exception for unopposed motions or those filed
on consent”).
Next, there was no “prima facie approvable” matter pend‐
ing before the immigration judge or any other agency. Since
Toure and Wolfe had filed the joint I‐751 petition in 2011,
which had been denied, the couple had divorced and Toure
No. 18‐3634 9
had filed a new I‐751 petition asking for a waiver of the joint‐
filing requirement. As the immigration judge said, she had no
authority over the new waiver petition that had not yet been
adjudicated by USCIS. See Matter of Lemhammad, 20 I. & N.
Dec. 316, 322 (BIA 1991) (“original jurisdiction to rule on the
merits of the hardship waiver application rests only with the
appropriate regional service center director, and not the im‐
migration judge”). This left nothing for the immigration judge
to continue but the ultimate disposition of the case. L‐A‐B‐R‐,
27 I. & N. Dec. at 415 (“The immigration judge should not
grant a continuance where the respondent appears to be seek‐
ing interim relief as a way of delaying the ultimate disposition
of the case.”).
Toure’s hope that USCIS would grant his waiver was spec‐
ulative at best. Recall that the discretionary collateral relief he
sought was the waiver of the joint‐filing requirement. Waiver
of the joint‐filing requirement may have been available (but
was not guaranteed) if Toure could have demonstrated that
he would suffer extreme hardship if he were removed and
“the qualifying marriage was entered into in good faith by the
alien spouse, but the qualifying marriage has been terminated
(other than through the death of the spouse) and the alien was
not at fault” in failing to meet the requirements for condi‐
tional permanent resident status. 8 U.S.C. § 1186a(c)(4)(B).
Toure has not shown any reason to have been optimistic
about his new, late, and solo I‐751 petition. The USCIS had
investigated before, and it had repeatedly found that the mar‐
riage had been a sham entered into for purposes of obtaining
permanent resident status for Toure.
In short, the judge and the Board did not abuse their dis‐
cretion in denying the motion to continue to pursue that relief.
10 No. 18‐3634
See Cadavedo, 835 F.3d at 784 (“The Board did not abuse its
discretion here in affirming the immigration judge’s denial of
the request for a continuance to seek speculative relief from
USCIS’s fraud bar.”); Souley v. Holder, 779 F.3d 720, 723 (7th
Cir. 2015) (denying motion to continue to allow petitioner’s
wife to file a second I‐130 petition was not an abuse of discre‐
tion).
In addition, Toure did not diligently pursue this collateral
remedy. See L‐A‐B‐R‐, 27 I. & N. Dec. at 412 (“Good cause also
may not exist when the alien has not demonstrated reasona‐
ble diligence in pursuing the collateral adjudication”). Under
8 U.S.C. § 1186a(c)(4)(B), Toure was eligible to apply for the
waiver once his divorce was final on December 3, 2014, but he
waited until July 11, 2017, just three months before his long‐
scheduled merits hearing. The immigration judge and Board
did not abuse their discretion by relying on this untimeliness
and the lack of communication to the court in their decision.
See Giri, 793 F.3d at 801 (no abuse of discretion in denying
continuance to allow petitioner time to submit fingerprints
when petitioner had more than a year and a half to prepare
for merits hearing, had been warned of the deadlines, and did
not request a continuance in advance of the hearing).2
2 Toure argues that the immigration judge and Board failed to examine
the factors set forth in Hashmi, 24 I. & N. Dec. at 790. The rationale pro‐
vided in their decisions satisfies those factors, though, and nothing in
Hashmi requires that the immigration court analyze each factor inde‐
pendently. We do not find an abuse of discretion because their explana‐
tions were not presented in a formulaic, checklist fashion. The factors all
weighed against granting a continuance here, which distinguishes this
case from Yang v. Holder, 760 F.3d 660, 667–68 (7th Cir. 2014) (granting
review because immigration judge’s and Board’s statements of reasons
did not meet Hashmi standards, and if they had “moved through the
No. 18‐3634 11
For these reasons, Toure’s petition for review is DENIED.
Hashmi checklist, the ultimate decision on the continuance would have
been better informed”).