Saley Souley v. Eric Holder, Jr. ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-2536
SALEY SOULEY,
Petitioner,
v.
ERIC H. HOLDER, JR,
Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A088-646-916
____________________
ARGUED MARCH 3, 2015 — DECIDED MARCH 11, 2015
____________________
Before POSNER, KANNE, AND TINDER, Circuit Judges.
PER CURIAM. Saley Souley, a citizen of Niger, petitions for
review from the denial of his request to continue his removal
proceedings to give his U.S. citizen wife time to file a second
I-130 visa petition on his behalf (the government had already
denied her first). The IJ thought her second, unfiled petition
had no greater chance of success and denied the request for
a continuance. Because Souley did not present evidence of
2 No. 14-2536
good cause for the continuance, we deny the petition for re-
view.
Souley entered the United States in 2005 on a visitor’s
visa (the validity of which is not reflected in the record) and
overstayed. In 2008 the Department of Homeland Security
placed Souley—at the time living in Harrisburg, Pennsylva-
nia—in removal proceedings for remaining in the United
States without authorization, see 8 U.S.C. § 1227(a)(1)(B), and
being inadmissible at the time of his entry because he lacked
a valid entry document, see id. § 1227(a)(1)(A). Souley failed
to appear for his hearing in August 2008, so an IJ in Phila-
delphia ordered him removed in absentia.
Apparently unaware of the removal order, Souley
moved from Pennsylvania to Indiana and married Rochelle
Thornton, a U.S. citizen, in June 2009. Nearly two years later,
Souley, assisted by counsel, filed an application to adjust his
status, and Thornton applied concurrently on his behalf for
an I-130 “alien relative” visa—the first step toward adjusting
his status to permanent resident, see 8 U.S.C.
§§ 1151(b)(2)(A)(i), 1255(i); 8 C.F.R. § 245.2; Nunez-Moron v.
Holder, 702 F.3d 353, 354 n.1 (7th Cir. 2013) (as amended on
denial of rehearing) (explaining that an approved I-130 peti-
tion allows a person illegally present in the United States to
remain and apply for adjustment of status); In re Hashmi, 24
I. & N. Dec. 785, 789–90 (BIA 2009). In late 2011 immigration
officers interviewed the couple and detained Souley based
on the outstanding August 2008 removal order.
While detained, Souley moved the immigration court
in Philadelphia to reopen the 2008 proceedings so that he
could adjust his status in the event that DHS granted
No. 14-2536 3
Thornton’s pending I-130 petition. See 8 U.S.C. § 1255(i). He
also moved to change venue from Philadelphia to Chicago.
The government did not oppose either motion, and the IJ
granted the motion to reopen and the motion to change ven-
ue in January 2012.
Ten days later DHS issued a Notice of Intent to Deny
Thornton’s I-130 petition 1 because she had not shown by
clear and convincing evidence that the marriage was bo-
na fide and entered into in good faith. See 8 U.S.C. §§
1154(g), 1255(e)(2), (3). DHS pointed to inconsistent respons-
es given by Souley and Thornton about details of their en-
gagement and marriage ceremony, as well as Souley’s ap-
parent asthmatic condition. Further, Thornton provided very
little documentary evidence regarding the relationship, sup-
plying only a joint bank account statement and a lease
agreement that listed her as the only tenant but bore Soul-
ey’s signature. DHS also noted that eviction proceedings had
been brought by Thornton’s landlord against her, yet did not
name Souley as a party. Finally DHS explained that Souley
had not provided proper documentation showing that a
previous marriage of his in Niger had ended.
Thornton, aided by Souley’s lawyer, responded to the
Notice of Intent to Deny, attempting to address DHS’s con-
cerns. She attributed the inconsistent statements to misun-
derstandings about the questions because the interview was
conducted through an interpreter. She also stated that she
1 A Notice of Intent to Deny explains DHS’s reasons for the impend-
ing denial and gives the petitioner 30 days to submit reasons why the
denial should not be made and to provide documentary evidence in
support.
4 No. 14-2536
was the only tenant listed on the lease because Souley was
out of town on business when she signed the documents,
and the landlord had assured her that Souley could be add-
ed to the lease when he returned. The omission of Souley’s
name from the lease agreement was also the reason he had
not been named as a party to the eviction proceedings. Final-
ly, she insisted that Souley’s documentation about his di-
vorce in Niger was valid.
In February 2012, while the I-130 petition was pend-
ing, Souley posted bond and was released from DHS custo-
dy.
Seven months later, DHS denied Thornton’s I-130 pe-
tition. DHS explained that Thornton’s response had not re-
solved the issues identified in the notice and concluded that
Thornton had failed to meet her burden to show that the
marriage was bona fide. Thornton did not appeal the denial.
In July 2013, nearly 10 months after the denial of the I-
130 petition, Souley, accompanied by counsel, appeared be-
fore the IJ at a master calendar hearing. At the hearing Soul-
ey admitted the allegations in the Notice to Appear and con-
ceded his removability, but sought a continuance to allow
Thornton time to file a second I-130 petition. Souley attached
a copy of the prepared I-130 application, a money order
showing that Thornton had the funds to pay the filing fee,
and documents that he said established the marriage was
bona fide, including a lease agreement (Souley is the only
resident listed), records from a lawsuit filed against Souley
for nonpayment of rent, and joint bank account statements.
No. 14-2536 5
The IJ denied the continuance. The IJ analyzed the cri-
teria set forth in In re Hashmi, 24 I. & N. Dec. at 790–94, and
concluded that Souley had not shown good cause for a con-
tinuance. First, the IJ noted that the government opposed the
request. Second, as to whether the underlying visa petition
was prima facie approvable, the IJ explained that the agency
“has clearly stated that it will not grant a visa petition to the
respondent through his marriage to Rochelle Thornton.” The
IJ went on to explain that without an approvable visa peti-
tion, Souley was not statutorily eligible for adjustment of sta-
tus. Finally, the IJ speculated that the primary reason Souley
asked for the continuance was to “prolong the hearing un-
necessarily.” The IJ noted that Thornton’s petition was de-
nied nearly a year earlier and she had failed to appeal that
decision or introduce any new evidence to support the exist-
ence of a valid marriage. Continuing the case so that Souley
would have an opportunity “to file a second visa petition by
the same petitioner for the same reason is to . . . engage in a
futility for no other purpose than delay.” Continuances typi-
cally should be granted in cases where a visa petition is
pending, the IJ observed, but no visa petition was pending in
Souley’s case because Thornton never filed a second petition.
The Board upheld the IJ’s ruling, agreeing with the IJ
that no new visa petition had been approved or even filed
with DHS and thus Souley had not shown good cause for a
continuance or that the continuance resulted in actual preju-
dice.
Souley contends that the IJ abused his discretion by
denying a continuance in a case like his in which a facially
approvable visa petition is pending. “[D]iscretion should be
6 No. 14-2536
favorably exercised,” he urges, “where a prima facie approv-
able visa petition . . . ha[s] been submitted in the course of an
ongoing removal hearing.” Souley’s reliance on this stand-
ard is misplaced, however, because Thornton did not file the
second I-130 petition before Souley moved to continue the
hearing. See Mohammed v. Holder, 459 F. App’x 467, 468 (5th
Cir. 2012). Thornton apparently has yet to file a second I-130
petition. It is not an abuse of discretion for an IJ to deny a
continuance based on the speculative nature of an unfiled I-
130 petition. See Calma v. Holder, 663 F.3d 868, 878–79 (7th
Cir. 2011) (no abuse of discretion where IJ cited the “specula-
tive nature” of alien’s hope that noncitizen wife would be-
come naturalized and then file and obtain alien-relative visa
leading to his adjustment of status).
Next, Souley argues that the IJ wrongly relied on the
denial of Thornton’s first I-130 petition as a basis to conclude
that good cause did not exist to grant the continuance. But
the denial of a prior request for relief is highly relevant to
whether good cause exists to continue removal proceedings
to await adjudication of a renewed visa petition. See 8 C.F.R.
§ 1003.29; Morgan v. Gonzales, 445 F.3d 549, 552–53 (2d Cir.
2006) (no abuse of discretion for IJ to deny continuance for
pending adjudication of second I-130 petition based on mar-
riage already determined not to be bona fide); In re Hashmi,
24 I. & N. Dec. at 792 (previously rejected I-130 visa petitions
may be considered by immigration judges because “prior
filings or other evidence of potential fraud or dilatory tactics
may impact the viability of the visa petition underlying the
motion” for continuance). When an IJ considers a request for
a continuance, he may focus on the likelihood that the bene-
ficiary of an I-130 petition will succeed in adjusting his status
No. 14-2536 7
based on that petition. In re Hashmi, 24 I. & N. Dec. at 790;
see Afzal v. Holder, 559 F.3d 677, 679 (7th Cir. 2009) (IJ, in rul-
ing on motion for continuance, “was entitled to rely” on fact
that alien “could not point to any prospect of success” in get-
ting immigration officials to reinstate previously revoked I-
130 petition); Pede v. Gonzales, 442 F.3d 570, 571 (7th Cir.
2006) (no abuse of discretion to deny continuance given “ul-
timate hopelessness” of application for adjustment of status);
Morgan, 445 F.3d at 552 (alien “had no right to the adjudica-
tion of a second I-130 petition stemming from a marriage
that had already been determined to lack bona fides”).
Souley’s final argument seems grounded in due pro-
cess, though he does not use the term. He argues that the IJ
caught him off guard and acted prematurely by denying the
continuance and ordering him removed at the master calen-
dar hearing without allowing him to submit evidence of eli-
gibility at a later hearing date. In order to establish a denial
of the right to due process, however, Souley must show that
he was prejudiced by the IJ's actions. See Hasanaj v. Ashcroft,
385 F.3d 780, 785 (7th Cir. 2004); Wigglesworth v. INS, 319
F.3d 951, 960 (7th Cir. 2003). And the record reveals nothing
to suggest that he was prejudiced by the IJ’s denial of the
continuance at the master calendar hearing. The IJ explained
that further delay in the case was unnecessary: Souley had
over a year and a half to gather additional documents to
support a second I-130 petition, yet he failed to do so—
indeed, some of the supporting documentation (joint bank
account statements) for the second petition appears to be
identical to the evidence submitted in support of the failed
first petition, and the remainder of the new documentation
(lease agreement signed only by Souley and records of a
8 No. 14-2536
lawsuit against Souley for nonpayment of rent) does not
show that the couple had a bona fide marriage. (Souley’s
contention that his detention inhibited his discovery efforts
is weak; he was released from custody in February 2012, 17
months before his master calendar hearing.) Souley never
explained—and still has not explained—what documents he
would present if the IJ had given him more time. And the IJ
reasonably expressed doubt that Thornton would ever file
the second I-130 petition, given that she had failed to do so
in the intervening stretch of time after the denial of her first
petition.
Accordingly, the petition for review is DENIED.