Korcinska v. Holder

09-4909-ag
Korcinska v. Holder
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. W HEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 16th day of December, two thousand and ten,
Present: JOSEPH M. McLAUGHLIN,
ROSEMARY S. POOLER,
RICHARD C. WESLEY,
Circuit Judges.
_____________________________________________________
ADRIANA KORCINSKA, JAN ADAMOVIC,
Petitioner,
-v- 09-4909-ag
ERIC H. HOLDER, JR., United States Attorney General,
Respondent.
Appearing for Petitioner: Elyssa N. Williams, New Haven, CT.
Appearing for Respondent: Katherine A. Smith, Trial Attorney, Office of Immigration
Litigation Civil Division, U.S.D.O.J.; Tony West, Assistant
Attorney General Civil Division, Douglas E. Ginsburg, Assistant
Director, Office of Immigration Litigation, Washington, D.C.
Petition for review of an order of the Board of Immigration Appeals (“BIA”).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the petition for review is DENIED.
Petitioners Adriana Korcinska and her husband Jan Adamovic (“petitioners”), natives and
citizens of the Slovak Republic, seek review of an October 29, 2009, order and decision of the
BIA, affirming the March 4, 2009, order and decision of the Immigration Judge (Strauss, I.J.),
denying petitioners’ request for a continuance pursuant to 8 C.F.R. §§ 1003.29, 1240.6, and
ordering petitioners removed. We assume the parties’ familiarity with the underlying facts,
procedural history, and specification of issues for review.
On appeal, petitioners argue that the IJ abused his discretion in denying petitioners’
motion for a continuance. Petitioners allege that neither the IJ nor the BIA followed the
standards set forth in Matter of Rajah, 25 I. & N. Dec. 127 (BIA 2009), for deciding when a
continuance should be granted “for good cause.” Specifically, they argue that the IJ erred in not
properly taking into account Korcinska’s eligibility for adjustment of status under 8 U.S.C.
§ 1255(i).
The BIA adopted the reasoning of the IJ. “When the BIA briefly affirms the decision of
an IJ and adopts the IJ’s reasoning in doing so, we review the IJ’s and the BIA’s decisions
together.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006) (quotation
marks and alterations omitted). The IJ may grant a request for a continuance at her or his
discretion “for good cause shown.” 8 C.F.R. §§ 1003.29, 1240.6; see also Matter of Sibrun, 18 I.
& N. Dec. 354, 355-56 (BIA 1983). A court of appeals has jurisdiction to review an IJ’s denial
of a continuance, and that review is conducted under a “highly deferential standard of abuse of
discretion.” Morgan v. Gonzales, 445 F.3d 549, 551 (2d Cir. 2006). The IJ abuses his discretion
where “(1) his decision rests on an error of law (such as application of the wrong legal principle)
or a clearly erroneous factual finding or (2) his decision-though not necessarily the product of a
legal error or a clearly erroneous factual finding-cannot be located within the range of
permissible decisions.” Id. at 551-52 (quoting Zervos v. Verizon New York, Inc., 252 F.3d 163,
169 (2d Cir. 2001)) (alterations omitted).
In Rajah v. Mukasey, 544 F.3d 449 (2d Cir. 2008), this court requested the BIA to set
forth standards for when an IJ could decide, within her or his discretion, to grant a continuance.
The court explained it could not “adequately consider whether the agency abused its discretion in
denying petitioner’s request for a continuance . . . in the absence of standards that reflect the
various situations of those seeking such continuances.” Id. at 450. Less than a month after the
BIA affirmed the IJ’s decision in the case of Korcinska, the BIA responded to the Second Circuit
in Matter of Rajah, 25 I. & N. Dec. 127. The BIA there held: “[i]n determining whether good
cause exists for a continuance, the Immigration Judge should first determine the respondent’s
place in the employment-based adjustment of status process and then consider and balance the
Hashmi factors, if applicable, and any other relevant considerations.”1 Id. at 130. The BIA
1
Matter of Hashmi, 24 I. & N. Dec. 785 (BIA 2009) is an earlier, precedential opinion
which addressed the factors the IJ should consider in determining whether to continue
proceedings to afford the United States Citizenship and Immigration Services (“USCIS”) the
opportunity to adjudicate a family-based I-130 Petition for Alien Relative Form which, if
approved, would render the respondent prima facie eligible for adjustment of status. The factors
enunciated in Hashmi are illustrative rather than exhaustive and include consideration of: “(1) the
[Department of Homeland Security] response to the motion; (2) whether the underlying visa
petition is prima facie approvable; (3) the respondent’s statutory eligibility for adjustment of
status; (4) whether the respondent’s application for adjustment merits a favorable exercise of
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further noted that “the focus of the inquiry is the likelihood of success on the adjustment
application.” Id. Matter of Rajah emphasized that an IJ can properly take into account the
remoteness of the availability of a visa in deciding that no good cause was shown for granting a
continuance. Id. at 137. The IJ must also “evaluate the individual facts and circumstances
relevant to each case.” Id. at 136. Accordingly, “the respondent may be required to submit
evidence of his adjustment eligibility, including the adjustment application, relevant supporting
documentation and USCIS fee receipts.” Id. In particular, “[b]ecause grandfathered aliens can
adjust their status when other aliens would be precluded from adjusting, the Immigration Judge
should specifically consider an alien’s eligibility for section 245(i) treatment when considering a
motion to continue.” Id. at 135.
Petitioners argued to the IJ that Korcinska was “grandfathered” under § 1255(i) because
her father had filed a labor certification before April 30, 2001. See 8 U.S.C. § 1255(i)(1)(B)(ii).
Accordingly, she would benefit from his grandfathered status as the spouse or child of the
principal alien. See id. § 1255(i)(1)(B). Petitioners did not, however, submit any evidence
before the IJ, before the BIA, or before this Court to support their allegations that Korcinska was
eligible for adjustment of status. The IJ noted that Korcinska had alleged her father had properly
adjusted status. He also indicated Korcinska had not yet filed her labor certification when she
appeared before him. The IJ concluded that because the labor certification had not yet been filed,
Korcinska would still have to file an I-140 petition, and as a skilled worker, Korcinska had a
“long way for visa numbers to become available.” Accordingly, he reasoned that “any relief at
this time is purely speculative.”
Korcinska not only failed to introduce evidence into the record, but a labor petition had
not yet been filed at the time of the hearing before the IJ. While petitioners indicate the petition
had been submitted by the time of their appeal to the BIA, petitioners submitted no evidence to
support their assertion. Accordingly, we cannot say that the IJ abused his discretion in denying
petitioners’ request for a continuance. See Elbahja v. Keisler, 505 F.3d 125 (2d Cir. 2007) (per
curiam).
We therefore DENY the petition for review and AFFIRM the decision of the BIA.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
discretion; and (5) the reason for the continuance and other procedural factors.” Id. at 790-91.
Matter of Hashmi also indicated that compliance with case completion goals is not a proper
consideration in deciding to deny a continuance request. Id. at 793-94.
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