Guillermo Banuelos-T v. Eric Holder ( 2012 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued January 25, 2012
Decided February 14, 2012
Before
WILLIAM J. BAUER, Circuit Judge
RICHARD A. POSNER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 11-2794
GUILLERMO BANUELOS-TORRES, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals.
v. No. A089 279 599
ERIC H. HOLDER, JR.,
Attorney General of the United States,
Respondent.
ORDER
Guillermo Banuelos-Torres, a citizen of Mexico living in the United States without
authorization, sought a continuance in his removal proceedings on the ground that
eventually he would be eligible to apply to adjust his status to that of a lawful permanent
resident. An Immigration Judge denied the request after determining that Banuelos-Torres
was not prima facie eligible for adjustment of status. Moreover, the IJ concluded,
Banuelos-Torres posed a threat to the community because he continued to commit driving
offenses, including driving under the influence of alcohol, long after his license had been
suspended. The Board of Immigration Appeals upheld the IJ’s ruling, and Banuelos-Torres
has petitioned for review. The only issue he raises to this court is whether it was an abuse
of discretion to deny his motion for a continuance. Because the immigration courts gave a
reasoned explanation for the decision, we deny the petition for review.
No. 11-2794 Page 2
I.
Banuelos-Torres came to the United States in 1990 without inspection. In 1997 his
brother, a U.S. citizen, filed on his behalf a Petition for Alien Relative, Form I-130, to
establish their relationship. That petition makes Banuelos-Torres eligible to apply to adjust
his status to that of a permanent resident, but not until an immigrant visa is immediately
available to him. See 8 U.S.C. § 1255(i)(1), (2). As the brother of a citizen, Banuelos-Torres is
in the “fourth preference category” for family sponsored visas and is subject to the visa
waiting list established by the Department of Homeland Security’s priority date system.
See id. § 1153(a)(4). That waiting list is lengthy, and Banuelos-Torres has remained in the
United States illegally while waiting for his name to reach the top. He still does not have an
immediately available visa.
Meanwhile, over the years Banuelos-Torres has been arrested multiple times for
driving offenses, including driving under the influence of alcohol and driving with a
suspended license. In fact, Banuelos-Torres’ license has been suspended continuously since
2001, and still he has been driving and incurring violations. After a third conviction for DUI
in 2008, he was sentenced to one year of imprisonment. That conviction caught the
attention of immigration authorities, who charged that Banuelos-Torres was present
illegally in the United States and initiated removal proceedings in July 2009. See 8 U.S.C.
§ 1182(a)(6)(A)(I). At Banuelos-Torres’ first hearing, the IJ continued the matter for one
month to give newly retained counsel more time to prepare.
At the next hearing Banuelos-Torres conceded that he is removable but explained
that he intends to apply for permanent residency when, as he expects to happen eventually,
he receives a visa based on his brother’s I-130 petition. Because the I-130 petition was filed
before April 2001, Banuelos-Torres is “grandfathered” under the Immigration and
Nationality Act and will be entitled to apply for adjustment of his status even though he
has remained in the country without authorization. 8 U.S.C. § 1255(i)(1). But he will not be
prima facie eligible to adjust his status until a visa is immediately available to him. Id.§ 1255(i)(2)(B). Only a limited number of family sponsored visas are issued each year, and
those visas are issued in chronological order within a preference category based on each
applicant’s “priority date” (the date an I-130 petition was filed on his behalf). Id.
§ 1151(c)(1)(A); 8 C.F.R. § 245(g)(2). A visa will not be available to an alien until other
applicants with earlier priority dates have received visas. 8 C.F.R. § 245(g)(1). At the time of
Banuelos-Torres’ second hearing, the State Department was issuing immigrant visas only
for those “fourth preference” aliens whose Form I-130 had been filed on or before
December 8, 1995 (a month earlier than the January 1996 date mistakenly recited by the
government’s lawyer). See U.S. D EPARTMENT OF STATE, V ISA BULLETIN FOR A PRIL 2010,
No. 11-2794 Page 3
http://www.travel.state.gov/visa/bulletin/bulletin_4747.html. Banuelos-Torres’ priority date
is May 27, 1997, so he did not have an immediately available visa. He asked the IJ to
continue the hearing indefinitely until his priority date became current but offered no
estimate as to how long that would take.
The IJ concluded that the motion was not supported by good cause and denied it.
The IJ first noted that Banuelos-Torres had conceded that he was not immediately eligible
for a visa because his priority date still was not current. The IJ then detailed
Banuelos-Torres’ convictions for driving under the influence of alcohol and driving with a
suspended license. Banuelos-Torres’ repeated “defiance” of U.S. driving laws, the IJ
explained, suggested that he would continue to drive, including while intoxicated, without
a valid license. Thus, the IJ reasoned, Banuelos-Torres posed a direct threat to the safety of
the community. The judge ordered him removed to Mexico.
Banuelos-Torres appealed to the Board of Immigration Appeals. He argued that the
IJ should have continued the hearing until his priority date became current, which he
predicted would happen “in a little over a year.” He also contended that the IJ
inappropriately had relied on his driving record to deny the continuance. The Board
dismissed the appeal after concluding that Banuelos-Torres had not shown good cause for
a continuance. He was not prima facie eligible to adjust his status, the Board determined,
and the IJ had been allowed to consider his driving offenses when evaluating the motion.
II.
Banuelos-Torres argues in this court that the IJ should have granted a continuance
because he was “very close” to becoming eligible to adjust his status. In his view, the IJ
arbitrarily denied the motion because of his “bad driving record.” The government
counters that Banuelos-Torres’ history of convictions and lack of an immediately available
visa provided sufficient grounds for the denial. And, the government points out,
Banuelos-Torres’ priority date still is not current. In the twenty months since his second
hearing, the current priority date has advanced only five months and presently is May 8,
1996. See U.S. D EPARTMENT OF STATE, V ISA B ULLETIN FOR JANUARY 2012,
http://www.travel.state.gov/visa/bulletin/bulletin_5630.html. Over the last decade, the
priority date for fourth-preference aliens from Mexico, such as Banuelos-Torres, has
progressed about six months each year. See U.S. D EPARTMENT OF STATE, M EXICO C UT-OFF
D ATES, http://www.travel.state.gov/pdf/Cut-off_Dates_Mexico_online.pdf. At the current
rate, it is unlikely that a visa will become available to Banuelos-Torres before at least
January 2014. Only then could he apply for an adjustment of status, and the ruling on that
application would be committed to the discretion of the Attorney General. See 8 U.S.C.
§ 1255(i)(2).
No. 11-2794 Page 4
Where, as here, the Board agrees with the IJ’s decision but adds its own reasoning,
we review the IJ’s decision as supplemented by the Board. See Juarez v. Holder, 599 F.3d 560,
564 (7th Cir. 2010). We have jurisdiction to review the denial of the requested continuance
because the underlying basis for the order of removal is reviewable, see Subhan v. Ashcroft,
383 F.3d 591, 594 (7th Cir. 2004), and anyway the ruling on Banuelos-Torres’ motion for a
continuance does not implicate the merits of the removal proceedings or his intended
application for adjustment of status, see Calma v. Holder, 663 F.3d 868, 878 (7th Cir. 2011). An
IJ has discretion to grant a continuance if the petitioner shows good cause, 8 C.F.R.
§ 1003.29, but the refusal to do so will be upheld by this court unless the decision “was
made without a rational explanation, inexplicably departed from established policies, or
rested on an impermissible basis such as invidious discrimination against a particular race
or group,” Calma, 663 F.3d at 878 (internal quotation marks and citation omitted).
The IJ in this case denied the continuance primarily because Banuelos-Torres poses a
threat to the safety of the community, as evidenced by his continuing driving offenses. The
Board, for its part, agreed that it was appropriate for the IJ to take into account
Banuelos-Torres’ convictions for driving offenses. Banuelos-Torres tries to spin those
offenses as “a bad driving record,” but that characterization downplays the seriousness of
his crimes. He continued to drive despite his suspended license (Banuelos-Torres has not
disputed the IJ’s assertion that his license has been suspended since 2001) and repeatedly
did so while drunk. His third DUI yielded a felony conviction for aggravated driving under
the influence of alcohol. See 625 ILCS 5/11-501(d)(1), (2). It is unclear from the record
whether that DUI was charged as an aggravated offense because of his recidivism, 625 ILCS
5/11-501(d)(1)(A), or because he was driving drunk while his license was suspended, id.
§ 5/11-501(d)(1)(G). A conviction under the latter section may constitute a crime involving
moral turpitude, which would render Banuelos-Torres ineligible to receive a visa and
subject to removal. See 8 U.S.C. §§ 1182(a)(2)(A)(i)(I), 1255(i)(2)(A); Marmolejo-Campos v.
Gonzales, 503 F.3d 922, 926 (9th Cir. 2007); In re Lopez-Meza, 22 I. & N. Dec. 1188, 1194–95
(BIA 1999). But in any case, the threat created by Banuelos-Torres’ continued criminal
behavior provided a valid reason for denying the motion for a continuance. See Ceta v.
Mukasey, 535 F.3d 639, 647 (7th Cir. 2008); Subhan, 383 F.3d at 593–94; Badwan v. Gonzales,
494 F.3d 566, 570 (6th Cir. 2007).
Banuelos-Torres has not addressed the Board’s statement that an IJ may consider
convictions for driving offenses in assessing whether an alien has established good cause
for a continuance, nor has he filed a reply brief disputing the government’s citation to
Subhan as support for that proposition. Rather, Banuelos-Torres simply insists that the
Board should have overturned the IJ’s ruling because, in his view, he is “close” to becoming
eligible to adjust his status. That argument might have had traction if the IJ had relied
No. 11-2794 Page 5
solely on his present ineligibility to adjust his status. In that context an observation that
Banuelos-Torres lacked an immediately available visa would be “a statement of the
obvious,” not a reason to deny a motion for a continuance. Ahmed v. Gonzales, 465 F.3d 806,
810 (7th Cir. 2006); Subhan, 383 F.3d at 593; Badwan, 494 F.3d at 570; but see Luevano v. Holder,
660 F.3d 1207, 1214–15 (10th Cir. 2011) (concluding that lack of immediately available visa
is reason to deny continuance because alien is not eligible for adjustment of status at time
of hearing); Chacku v. U.S. Attorney Gen., 555 F.3d 1281, 1286 (11th Cir. 2008) (same). But the
IJ did not simply acknowledge Banuelos-Torres’ place in the adjustment of status process;
he appropriately reasoned that, in light of Banuelos-Torres’ repeated DUIs, a continuance
was not warranted. See Matter of Hashmi, 24 I. & N. Dec. 785, 793–94 (BIA 2009).
Accordingly, we DENY the petition for review.