Ukpabi v. Mukasey

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0202n.06
Filed: April 17, 2008
No. 06-4028
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MORGAN UKPABI, )
) ON APPEAL FROM THE
Petitioner, ) BOARD OF IMMIGRATION
) APPEALS
v. )
) OPINION
MICHAEL B. MUKASEY, United States Attorney )
General, )
)
Respondent. )
)
BEFORE: CLAY and McKEAGUE, Circuit Judges; and BOYKO, District Judge.*
BOYKO, District Judge.
Petitioner, Morgan Ukpabi, seeks review of an order of removal, issued following the denial
by the Immigration Judge (“IJ”) of Petitioner’s request for a continuance to await the outcome of a
second Visa Petition (“Form I-130") filed by Petitioner’s third wife. The Board of Immigration
Appeals (“BIA”) adopted and affirmed the IJ’s decision. Petitioner appeals the IJ’s denial of his
motion for a continuance and the BIA’s summary affirmance.
*
The Honorable Christopher A. Boyko, United States District Judge for the Northern District
of Ohio, sitting by designation.
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The appeal is not well-taken. Petitioner has failed to demonstrate the IJ abused her discretion
or that her decision violated either the Due Process Clause of the United States Constitution or
international law. Accordingly, we AFFIRM.
I.
Petitioner is a native and citizen of Nigeria who was admitted to the United States as a non-
immigrant visitor for business on February 23, 1999. Petitioner was apparently married in his native
Nigeria. Once here, he married a United States citizen named Robin L. Chateau — a union which
purportedly ended in 2003. Later, he married a United States citizen named Andrea Blakely.
Petitioner was originally authorized, by his non-immigrant business visa, to stay in this country for
three months; and he overstayed that authorized period. A Notice to Appear, dated November 22,
2002, was issued to Petitioner by the United States Immigration and Naturalization Service (“INS”).1
On or about March 21, 2001, Petitioner submitted an Application to Register Permanent
Resident or Adjust Status (I-485) to the INS, based upon his marriage to Robin L. Chateau, an
American citizen. In order to justify adjustment of status, the marriage to the United States citizen
must be valid and bona fide, i.e., the bride and groom must have intended to establish a life together
at the time they were married. In April of 2002, the INS sent a request to Ms. Chateau for proof that
Petitioner’s first marriage had been terminated under the laws of Nigeria. Six months later, Ms.
Chateau responded that Petitioner had no further documents regarding the prior marriage, and that
her trust in Petitioner “is gone and so is my Petition.” After the withdrawal of the Visa Petition was
1
On March 1, 2003, service and benefit functions of the INS transitioned into the Department
of Homeland Security as the U.S. Citizenship and Immigration Services (“USCIS”).
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confirmed, the Notice to Appear, charging Petitioner with removability, was prepared and mailed.
Due to some discrepancies in the agency’s records, the notice was most likely mailed to an outdated
address. A scheduling notice, setting a hearing date of August 31, 2005, in immigration court, was
sent to 5745 Parker St., Detroit, Michigan. Petitioner failed to appear at the hearing and he was
ordered removed in absentia.
On March 31, 2005, Petitioner executed a new application to adjust status (I-485), based on
his third marriage to a U.S. citizen named Andrea Blakely. Ms. Blakely signed a Visa Petition on
her husband’s behalf the following month. She represented that she and Petitioner had lived together
since December 2002 at 20443 Binder, Detroit, Michigan; that his previous marriage to Ms. Chateau
ended in March of 2003; and that she and Petitioner married in August of 2003. The new Visa
Petition and adjustment application were filed with USCIS on April 25, 2005; and Petitioner was
directed to appear on October 25, 2005 for an interview. At the interview, Petitioner was arrested
and taken into custody because of the previously-issued in absentia removal order. Shortly
thereafter, Petitioner moved to reopen immigration court proceedings, claiming he had not received
notice of the August 31, 2005 hearing date. The motion was granted; and a new hearing date was
set for January 5, 2006. In the meantime, Petitioner remained in custody.
While these events transpired, USCIS notified Ms. Blakely, on December 20, 2005, of its
intention to deny the Visa Petition she had filed on Petitioner’s behalf. (Notice of Intent to Deny or
“NOID”). Ms. Blakely was allowed sixty days, or until February 20, 2006, to respond. A copy of
the NOID was sent to counsel for Petitioner. In support of the intent to deny, the government noted
the following:
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(1) Although several individuals stated Petitioner’s relationship with Ms. Blakely began in
February of 2002, Petitioner appeared for an interview at the INS with his second wife in
March of 2002;
(2) Neither Petitioner nor his second wife amended the record of his address, which showed
a Parker Street address, even though in March of 2002, they were living at a Burgess Street
address;
(3) Documentation offered by Petitioner did not support the contention he was part-owner
of a business with his third wife;
(4) Petitioner and his third wife filed separate income taxes, but purportedly amended to file
jointly just days before their October 2005 interview with USCIS;
(5) Ms. Blakely waited almost two years after the marriage before filing the Visa Petition on
Petitioner’s behalf;
(6) The couple provided “minimal documentary evidence” supporting the conclusion they
married with the intention of establishing a life together.
At the January 5, 2006 immigration court hearing, Petitioner admitted the allegations in the
Notice to Appear and conceded removability as a visa “overstay.” The government provided the IJ
with a copy of the NOID sent to Petitioner’s third wife. When Petitioner sought a continuance and
stated his intention to seek adjustment of status, the IJ asked if the Visa Petition had been approved.
The IJ commented that it appeared approval would be unlikely, and found no basis to continue the
case. The IJ remarked further that Petitioner had not “offset” the factors contained in the NOID; that
she would not continue her hearing awaiting an I-130 adjudication while Petitioner was in custody;
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and that she would not address the issue of bond. The IJ did, however, allow one week for Petitioner
and his counsel to discuss the possibility of pursuing other relief. On the date of the next hearing,
Petitioner submitted a “memorandum supporting request for continuance,” asserting he was
appealing the denial of bond and that his third wife had submitted her rebuttal to the NOID.
At the hearing of January 12, 2006, the government asserted its opposition to a continuance
and referenced concerns about Petitioner’s prior marriages. Petitioner objected to consideration of
the NOID, and to statements concerning the prior Visa Petition, which had been withdrawn.
The IJ remarked, in her oral decision, that she initially denied the request for continuance
because Petitioner had not sufficiently overcome the findings in the NOID. However, she
acknowledged receipt of Petitioner’s supporting memorandum, which relied upon Matter of Velarde,
23 I & N Dec. 253 (BIA 2002), for the proposition that the IJ cannot deny a continuance solely
because a Visa Petition has not been approved. The IJ distinguished Velarde on two grounds: first,
it pertains to motions to reopen and these proceedings were already reopened; and second, Velarde
applies where, unlike here, there is prima facie evidence to establish a bona fide marriage. The IJ
announced:
. . . the Department of Homeland Security has sufficient evidence upon which
it has advised . . . the United States citizen spouse [] that the immigrant visa petition
on behalf of Morgan Ukpabi will be denied because there is insufficient evidence on
which to base a conclusion that the parties married for the purpose of establishing a
life together. Counsel has not overcome the assertions made in this.
The IJ announced further that Petitioner “has equally not established any basis on which the
Court believes that a continuance in this case is merited”; and “[t]his is not a case where the Court
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is undertaking a ‘myopic insistence upon expeditiousness in the face of justifiable request for
delay.’” The IJ concluded by ordering Petitioner removed to Nigeria.
Petitioner filed an administrative appeal; and the BIA allowed additional evidence and
briefing.
On June 29, 2006, the BIA adopted and affirmed the decision of the IJ, “finding the
respondent [Ukpabi] removable as charged, denying the request for a continuance, and ordering him
removed from the United States.” A timely Petition for Review followed.
II.
This Court has jurisdiction to review the BIA order of removal, following the IJ’s denial of
Petitioner’s request for a continuance, under Section 242(a) of the Immigration and Nationality Act,
as amended (INA), codified at 8 U.S.C. § 1252(a). Specifically, this Court held in Abu-Khaliel v.
Gonzales, 436 F.3d 627, 631-34 (6th Cir. 2006), that it has jurisdiction to review an IJ’s denial of a
motion for continuance, notwithstanding the jurisdictional bar appearing in 8 U.S.C.
§ 1252(a)(2)(B)(ii) which concerns certain discretionary decisions.
III.
A. Petitioner’s Claims on Review
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Petitioner argues the IJ abused her discretion by denying Petitioner’s motion for a
continuance in order to await the outcome of a pending Visa Petition. Petitioner also argues his
constitutional right to Due Process was violated by the IJ when she denied a continuance for the
I-130 Visa Petition to be fully adjudicated. Moreover, Petitioner argues denial of a continuance and
the order of removal violated various multilateral treaties which favor preserving family integrity.
Petitioner contends the IJ was aware of the pending I-130 Visa Petition at the hearing for the
I-485 Application for Permanent Resident Status; but refused to grant a continuance to allow full
adjudication of the spouse’s I-130 Petition. Petitioner directs the panel’s attention to Benslimane
v. Gonzales, 430 F.3d 828, 832 (7th Cir. 2006): “an immigration judge cannot be permitted, by
arbitrarily denying a motion for a continuance without which the alien cannot establish a ground on
which Congress has determined that he is eligible to seek to remain in this country, 8 U.S.C.§§
1151(b)(2)(A)(i), 1255(a), to thwart the congressional design.”
Petitioner further insists the continuance was denied because Petitioner was detained, and
not on any substantive grounds. That is, he asserts the IJ would rather deport him than give him a
bond.
Petitioner contends the IJ’s reasoning was deficient; and thus, the denial of a continuance
was erroneous under Subhan v. Ashcroft, 383 F.3d 591 (7th Cir. 2004).
According to Petitioner, the decision of the IJ is wasteful of judicial resources, as the matter
could be reopened after the I-130 is adjudicated. Also, Petitioner claims his Due Process rights were
violated because “it now becomes a race between getting his I-130 adjudicated and getting this case
resolved.”
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B. Standard of Review
We review the BIA’s affirmance of the IJ’s denial of Petitioner’s motion for continuance
under an abuse of discretion standard. Abu-Khaliel, 436 F.3d at 634. 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.” Ilic-Lee v. Mukasey,
507 F.3d 1044, 1047 (6th Cir. 2007) (quoting Abu-Khaliel, 436 F.3d at 634 (citing Balani v. INS, 669
F.2d 1157, 1161 (6th Cir. 1982))).
C. Motion for Continuance
An IJ “may grant a motion for continuance for good cause shown.” 8 C.F.R. § 1003.29(2003) (emphasis added). Finding “good cause” is crucial since a continuance, in effect, allows an
alien to remain in the United States for a period of time without any defined legal immigration status.
An unreasonable continuance would thwart the operation of the statutes providing for removal of
inadmissible (8 U.S.C. § 1182) and deportable (8 U.S.C. § 1227) aliens.
Petitioner conceded his removability for overstaying his original non-immigrant visa. He
also conceded his third wife’s Visa Petition had not yet been granted. The NOID, issued by the
USCIS, showed it was unlikely the Visa Petition would be granted. The evidence, rather than
establishing a bona fide marriage, reasonably led USCIS to conclude Petitioner’s third marriage was,
at best, suspect.
In the recent Ilic-Lee decision, we faced the issue of the denial of a motion for continuance,
and distinguished the Seventh Circuit opinions upon which Petitioner relies. In particular, we relied
upon our prior decision in El Harake v. Gonzales, 210 F. App’x 482, 489 (6th Cir. 2006): “It cannot
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be the case that anytime an alien files an I-485 petition or has an I-130 petition filed on his behalf,
the IJ is required to grant a continuance. Such a view would conflict with the discretion that the
regulations explicitly provide to the IJ.” Ilic-Lee, 507 F.3d at 1047-48. In Subhan, upon which
Petitioner relies, there was an abuse of discretion because the IJ offered no reason for denying the
continuance. In Benslimane, moreover, the IJ provided an arbitrary reason. Here, however, as in
Ilic-Lee, the government opposed the request for a continuance; and the USCIS provided evidence
to the IJ of the doubtful validity of Petitioner’s third marriage. Further, Petitioner provided no
evidence to the IJ the application was likely to be approved. Where the record shows Petitioner’s
motion did not merit a continuance; where there is a reasonable explanation given by the IJ; where
there is no showing of discriminatory intent; and where there is no departure from established policy,
this Court will not find the IJ abused her discretion in denying the Petitioner’s motion. Ilic-Lee, 507
F.3d at 1048.
D. International Law
While Petitioner may be correct in arguing the United States has a policy favoring the
sanctity of marriage and family, he has failed to identify any specific violation of international law
in the handling of his case. Moreover, “[i]t is the role of Congress, not courts, to ensure that
immigration laws comport with family, societal, and other values.” Ilic-Lee, 507 F.3d at 1052.
E. Due Process
Petitioner asserts a Due Process right to a continuance while a pending Visa Petition is fully
adjudicated. It is well-settled that whether to grant a continuance is a determination left to the broad
discretion of the IJ. Sedrakyan v. Gonzales, 237 F. App’x 76, 80 (6th Cir. 2007); 8 C.F.R. § 1003.29-9-
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(2003). Furthermore, we have previously rejected the Due Process argument advanced by Petitioner,
holding failure to obtain discretionary relief “does not amount to a deprivation of a liberty interest”
protected by the Constitution. Abu-Khaliel, 436 F.3d at 635 (quoting Huicochea-Gomez v. INS, 237
F.3d 696, 700 (6th Cir. 2001)).
IV.
For the reasons set out above, we AFFIRM the BIA’s affirmance of the IJ’s denial of the
Petitioner’s motion for continuance of his I-485 adjustment of status hearing, which resulted in
finding Petitioner, Morgan Ukpabi, removable as charged, and ordering him removed from the
United States to Nigeria.
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