Ricardo Calma v. Eric Holder, Jr.

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2795
R ICARDO Y ONZON C ALMA,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney
General of the United States,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A026 702 335
A RGUED JUNE 14, 2011—D ECIDED D ECEMBER 5, 2011 Œ
O PINION P UBLISHED D ECEMBER 13, 2011
No. 10-3973
O LEH K HOMYSHYN ,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney
General of the United States,
Respondent.
Œ
This opinion was originally released in typescript on Decem-
ber 5, 2011.
2 Nos. 10-2795 & 10-3973
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A088 187 224
S UBMITTED JUNE 14, 2011 ŒŒ —D ECIDED D ECEMBER 5, 2011 ŒŒŒ
O PINION P UBLISHED D ECEMBER 13, 2011
Before P OSNER, R OVNER, and W OOD , Circuit Judges.
W OOD , Circuit Judge. The petitioners in these consoli-
dated cases, Ricardo Calma and Oleh Khomyshyn, have
a great deal in common. Both have been in the United
States for many years without permission, and each would
like to adjust his status to that of lawful permanent resi-
dent through relatives who are legitimately in the United
States. When the time came for an Immigration Judge (IJ)
to issue a decision, each was found ineligible for perma-
nent residence because of the lack of an approved family-
relative petition, Form I-130. Confronted with that obstacle,
they asked the IJs to continue the removal proceedings,
but the IJs denied those requests and ordered removal.
We have consolidated their petitions for review. Although
ŒŒ
This court granted Khomyshyn’s unopposed motion to
waive oral argument. The case is therefore submitted on the
briefs.
ŒŒŒ
This opinion was originally released in typescript on
December 5, 2011.
Nos. 10-2795 & 10-3973 3
we are satisfied that we have jurisdiction over those
petitions, we find no abuse of discretion in the judges’
rulings and thus deny both petitions.
I
A
Calma is a citizen of the Philippines who came to the
United States as a temporary worker in 1982. In 1986
he married Pamela Fuoss, a U.S. citizen, and she filed an I-
130 petition on his behalf. But during her interview
in support of the application and later in an affidavit,
Fuoss admitted that she married Calma only so that
he could remain in the United States. She withdrew
her petition, prompting the legacy Immigration
and Naturalization Services to place Calma in deportation
proceedings before an IJ. After Calma failed to show
up, the INS administratively closed the case in September
1987.
Calma reemerged 18 years later, in April 2005, when his
son Roderick, a U.S. citizen, filed a second I-130 petition on
his behalf. The Department of Homeland Security (DHS)
approved Roderick’s petition in July of that year, and
in September Calma moved to restore his earlier deporta-
tion hearing (by this time called a removal proceeding) to
the calendar. Calma indicated that once the proceeding
was active again, he would apply for permanent residence
based on his son’s approved I-130 petition.
Calma’s petition to restore the case was successful,
though as we shall see, a Pyrrhic victory. IJ Zerbe held
4 Nos. 10-2795 & 10-3973
a deportation hearing, at which the judge found that Calma
was deportable for overstaying his visa, as charged in
the 1987 administrative-closure order. Calma informed
the IJ that he was working to obtain an adjustment of
status through his son. In response, the IJ continued the
hearing for a year to give Calma time to apply for
his adjustment of status and to give the government an
opportunity to perform necessary background checks.
At the next hearing, the government informed Calma that
it intended to revoke his son’s I-130 petition based on
the fraudulent marriage in 1986. The IJ continued
the matter a second time to await the resolution of the
revocation proceedings.
The month before Calma’s next hearing, DHS revoked
Roderick’s I-130 petition after concluding that Calma
married Fuoss for immigration benefits. The agency
determined that the rebuttal evidence that Calma submit-
ted, including affidavits from Calma, his current wife,
and the couple who arranged the sham marriage, failed
to refute the 1987 affidavit filed by Fuoss admitting the
fraud. DHS concluded that the 1986 marriage “was not
valid for immigration purposes,” and that Calma’s fraud
was a “good and sufficient” reason to deny his son’s I-
130 petition. With the I-130 petition revoked, Calma no
longer had a basis for seeking permanent residence in
the United States. At that point, he asked for a continuance
so that he could appeal the decision to revoke to the
Board. The IJ accommodated this request with a postpone-
ment until October 24, 2008.
Unfortunately, when Calma returned on that date, the
Board still had not resolved his appeal from the revocation
Nos. 10-2795 & 10-3973 5
of the I-130 petition. Calma asked for yet another continu-
ance, but this time the IJ’s patience was at an end. Com-
menting that he did not believe that any further delay was
warranted, he denied this last postponement and ordered
Calma removed.
The Board dismissed Calma’s appeal from the order
denying the continuance in July 2010. It found that the
pending I-130 appeal was insufficient cause for granting
the continuance. Moreover, the Board continued, Calma
was unable to show prejudice to his application for perma-
nent residence because he presented no evidence that his
appeal from the revocation of the I-130 petition had been
successful. (This was putting it mildly; in fact, five months
earlier the Board had dismissed Calma’s appeal of the
revoked visa petition, citing Calma’s fraudulent marriage.
Calma did not petition for review of that decision.) The
petition for review now before us in No. 10-2795 is from
this decision of the Board. This was a final decision that
discussed only the continuance question; its practical effect
was to leave undisturbed the IJ’s decision that Calma was
removable as charged.
B
Khomyshyn’s case is somewhat less complicated. He
is a citizen of Ukraine who came to the United States on
a tourist visa in 2000. He appeared at his first hearing
before an IJ in March 2009 and asked IJ Zerbe to continue
his case so that his wife, who was herself a permanent U.S.
resident at the time, could file an I-130 petition on his
behalf. Khomyshyn explained that they were waiting to
6 Nos. 10-2795 & 10-3973
submit the petition until his wife became a naturalized
citizen, a status she would have been eligible to begin
seeking five months later. (Oddly, the record is silent about
her later actions. More than two years have passed since
the IJ’s decision, but Khomyshyn has not revealed whether
his wife has since naturalized. He concedes that at the time
of briefing the immediate-relative petition had not been
submitted.) He urged that as the spouse of a citizen
he would be immediately eligible for adjustment of status,
but as the spouse of a permanent resident he would
be subject to DHS’s “priority-date” system and would thus
have to wait several years before becoming eligible for this
relief.
The IJ denied the continuance request and ordered
Khomyshyn removed. The IJ noted that Khomyshyn’s wife
had not yet filed an immediate-relative petition on
his behalf and concluded that even if she had, a continu-
ance would still be inappropriate because, as a permanent
resident, it would take more than four years for her
to confer a benefit on Khomyshyn. Although the IJ recog-
nized that the wait would be reduced if Khomyshyn’s
wife became a citizen, he thought it “inappropriate to
assume that she would qualify for . . . naturalization.” In
general terms, the IJ explained that he considered it
improper to continue a case “so that the alien can at
some future unknown date accrue or develop an equity
which would qualify him for relief from removal,” particu-
larly in light of the agency’s goal that IJs complete cases
within 18 months.
Khomyshyn’s appeal to the Board challenged only
the IJ’s order denying his request for a continuance until
Nos. 10-2795 & 10-3973 7
he could establish his eligibility for adjustment of status.
The Board noted that he did not otherwise challenge his
removability. Exercising de novo review, it affirmed the
IJ’s decision to deny the continuance request. In so doing,
it highlighted the IJ’s decision to deny “the continuance
request because [Khomyshyn’s] wife had not yet filed the I-
130” and the fact that Khomyshyn “could not establish
visa availability as the spouse of a lawful permanent
resident.” This reasoning, the Board concluded, was
consistent with the approach it had announced in Matter
of Hashmi, 24 I. & N. Dec. 785, 790-91 (B.I.A. 2009),
a precedential decision providing a non-exhaustive list
of factors that IJs should consider when deciding a
request for a continuance. The Board criticized the IJ
for taking into account his case-completion goals, but
it concluded that remand was not necessary because
that factor was not the IJ’s primary consideration.
Khomyshyn’s petition for review, No. 10-3973, seeks
relief from the final decision of the Board refusing a
continuance and thus ordering his removal.
II
Both petitioners argue that the IJ (coincidentally, the
same one) abused his discretion in denying their
requested continuances. But before we address
that question, we must decide whether we have jurisdic-
tion over these two petitions for review. In Kucana
v. Holder, 130 S. Ct. 827 (2010), the Supreme Court held
that the jurisdiction-stripping language of 8 U.S.C.
§ 1252(a)(2)(B)(ii) did not apply to actions of the
8 Nos. 10-2795 & 10-3973
Attorney General made discretionary by regulation, as
opposed to statute. This led to a ruling in Kucana itself
that judicial review of a motion to reopen removal proceed-
ings in which the petitioner sought asylum was available,
albeit only for abuse of discretion. This was so despite
the fact that the ultimate question — whether to re-
open — rests firmly within the Attorney General’s discre-
tion.
The BIA must reach a “final” decision on the
overall removal proceeding before a petition may be
filed in this court, see 8 U.S.C. § 1252(a)(1) (providing
for “[j]udicial review of a final order of removal”), but
no one disputes that it has done so in both of the
cases before us, even though the central legal issue relates
to the continuances. A “final” judgment in a civil case
in federal court is also normally necessary before an
appeal may be taken to the court of appeals, see 28 U.S.C.
§ 1291, but that does not mean that the appellant is
limited to making arguments about the ultimate merits
of the case. We review bottom-line judgments — a point
that is well illustrated by the rule permitting us to
affirm on a basis not argued, as long as it finds proper
support in the record. See, e.g., Ruth v. Triumph
Partnerships, 577 F.3d 790, 797 (7th Cir. 2009); Winters
v. Fru-Con Inc., 498 F.3d 734, 743 (7th Cir. 2007). Interim
rulings and alternative theories alike are folded into
the final judgment, and so the appellant may assert that
the district court should have relied on a different ground,
or granted a continuance, or denied a motion in limine,
or compelled certain discovery. Just so here: Calma and
Khomyshyn now face final orders of removal, but their
Nos. 10-2795 & 10-3973 9
petitions do not attack the merits of the Board’s decisions
not to adjust their status. If they did, we would be com-
pelled to dismiss both petitions for review for want
of jurisdiction. Instead, Calma and Khomyshyn are assert-
ing that the IJ ruled prematurely; they want continuances
not for the purpose of digging up evidence that already
exists, but to allow time for other agencies to complete
their work. They argue that, at least in this situation,
a challenge to the denial of the continuance is not covered
by the jurisdiction-stripping rule. This is a point that
deserves close attention.
In Calma’s case, the government assumes without
analysis that Kucana supports this court’s jurisdiction and
that our review is under the deferential abuse-of-discretion
standard. In Khomyshyn’s case, in contrast, the govern-
ment has argued that Kucana holds only that our jurisdic-
tion was not eliminated by 8 U.S.C. § 1252(a)(2)(B)(ii),
which removes jurisdiction to review a decision of
the Attorney General “the authority for which is
specified under this subchapter to be in the discretion
of the Attorney General.” In Juarez v. Holder, 599 F.3d 560(7th Cir. 2010), however, decided two months after
Kucana, we commented that Kucana did not affect 8 U.S.C.
§ 1252(a)(2)(B)(i), which removes jurisdiction over
“any judgment regarding the granting of relief
under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of
this title.” See also Leguizamo-Medina v. Gonzales, 493
F.3d 772 (7th Cir. 2007). In both of the cases before us,
the ultimate decision (adjustment of status) is governed
by one of the statutes listed in section
1252(a)(2)(B)(i)— specifically, section 1255, which governs
10 Nos. 10-2795 & 10-3973
adjustment of status — and so the question before us
is whether we have jurisdiction to review the denial of
a continuance sought for the purpose of deferring
final decision in that kind of case. Although Kucana
is informative, it does not definitively resolve this is-
sue. Indeed, the Court specifically left open “the question
whether review of [decisions made discretionary
by regulation] would be precluded if the court would lack
jurisdiction over the alien’s underlying claim for relief.”
Kucana, 130 S. Ct. at 839 n.17.
The government argues that because Khomyshyn’s
request for a continuance is “ancillary” to his underlying
request for adjustment of status (and it might have said
the same about Calma), this court lacks jurisdiction under
8 U.S.C. § 1252(a)(2)(B)(i). It finds support for this position
in our pre-Kucana decisions in Leguizamo-Medina,
supra; Martinez-Maldonado v. Gonzales, 437 F.3d 679, 683
(7th Cir. 2006) (precluding judicial review over motions
to reopen or reconsider where court lacked ability
to review underlying claim); and Dave v. Ashcroft, 363
F.3d 649, 652 (7th Cir. 2004) (same). It also points to
two post-Kucana decisions, Juarez, 599 F.3d 560, and
Pawlowska v. Holder, 623 F.3d 1138 (7th Cir. 2010), both of
which it reads as adopting a broad reading of Leguizamo-
Medina. A closer look at Juarez and Pawlowska and similar
decisions in other circuits, however, reveals that the
rule may not be as absolute as the government suggests.
The rationale of our decision in Subhan v. Ashcroft, 383
F.3d 591 (7th Cir. 2004), also points toward a more nuanced
approach to this question.
Nos. 10-2795 & 10-3973 11
The best starting point for evaluating these arguments is
with the decision in Leguizamo-Medina. In that case, de-
cided three years before Kucana, petitioner Leguizamo-
Medina had applied for adjustment of status as the spouse
of a U.S. citizen. At the hearing evidence emerged suggest-
ing that the marriage was a sham. Leguizamo-Medina’s
husband then withdrew his immediate relative petition,
but later he submitted a new affidavit swearing that the
marriage was genuine. The IJ resolved matters with a
finding that the marriage was phony; this meant that
Leguizamo-Medina was not of good moral character and
thus was not entitled to cancellation of removal under
8 U.S.C. § 1229b (one of the statutes mentioned in
§ 1252(a)(2)(B)(i)). The BIA agreed, and the petitioner
then advanced to this court.
We acknowledged that questions of law were reviewable
pursuant to § 1252(a)(2)(D), but we pointed out that
Leguizamo-Medina was raising only two arguments:
first, that the IJ should have believed her testimony rather
than her husband’s, and second, that the IJ abused
his discretion by declining to grant a continuance so that
the husband’s sister could testify. 493 F.3d at 774. We
characterized both of those arguments as factual and thus
concluded that neither fell within the scope of
§ 1252(a)(2)(D). We commented on the issue that
was eventually resolved in Kucana (whether subpart
(B)(ii) bars review only of decisions made discretionary
by statute), but put that to one side since the relevant
subpart for her case was (B)(i). The latter subsection,
we said, “forecloses all review of decisions denying
requests for cancellation of removal.” We then continued
as follows:
12 Nos. 10-2795 & 10-3973
When an alien seeks not deferral of final decision, but
just an opportunity to present more evidence, it is
difficult to see how one could “review the denial of a
continuance” at all. The thing being reviewed (when
review is authorized) is the agency’s final decision
(here, a decision not to cancel the petitioner’s removal).
In an appeal from a district court, we don’t “affirm the
order sustaining the hearsay objection” or anything
similar; we review the final decision (see 28 U.S.C.
§ 1291) to determine whether the steps leading to that
decision were erroneous (and, if erroneous, whether
they were harmless). Just so here — with the difference
that § 242(a)(2)(B)(i) puts the decision beyond review,
and thus insulates the choices leading to that decision.
When a decision is unreviewable, any opinion one
way or the other on the propriety of the steps that led
to that decision would be an advisory opinion.
Id. at 775.
This rationale, as the Leguizamo-Medina court implicitly
acknowledged, is in real tension with the holding
in Subhan. There we considered the question whether
section 1252(a)(2)(B)(i) barred consideration of an
IJ’s refusal to grant a continuance to an alien who
was waiting for the Department of Labor to issue a certifi-
cate allowing him to be employed in the United States.
383 F.3d at 593. The only comment the judge made as
he ruled on Subhan’s request was that Subhan
might eventually be able to acquire lawful permanent
resident status based on his employment, but that he
was not eligible yet for that relief. This, as we pointed
Nos. 10-2795 & 10-3973 13
out, was a statement of the obvious. It was a description
of what was going on, rather than an explanation or a
reason.
In finding this decision reviewable, and outside the bar
of (B)(i), we observed that Subhan was not asking us
to review an adjustment-of-status decision — something
that would have been barred by section 1255. Instead,
he was asking us to review the propriety of the continu-
ance — that is to say, whether the Board’s decision to render
its final ruling on the merits of the 1255 petition when
it did was procedurally sustainable. (Part of our opinion
examined the question whether review was barred
by (B)(ii), but that is of no moment in the present case.)
We concluded that Congress would not have wanted “to
place beyond judicial review decisions by the immigration
authorities that nullif[y] the statute.” 383 F.3d at
595. Otherwise, “immigration judges [could] with
impunity refuse to grant one-week continuances to
persons in Subhan’s position. And that would sound the
death knell for the request, since unlike most grounds for
adjustment of status, adjustments based on employment,
like those based on marriage to a U.S. citizen, cannot
be pursued once the alien has been removed from
the United States.” Id. An allegation that the agency has
“nullified” a statute surely raises a legal question, cogniza-
ble under § 1252(a)(2)(D).
That conclusion alone would be enough to permit us to
see if a comparable problem taints either Calma’s or
Khomyshyn’s cases. There is more, however, that must be
said about the logic of the excerpt from Leguizamo-Medina
14 Nos. 10-2795 & 10-3973
that we have reproduced above. It is true, as the govern-
ment argues, that Juarez and Pawlowska appear at first
blush to reaffirm Leguizamo-Medina even after Kucana. But
there is reason to question this conclusion. In Juarez, we
noted that in cases where jurisdiction exists to review the
underlying claim for relief, Kucana now requires the review
of denied continuances for abuse of discretion. See 599 F.3d
at 564-65. It was only in a footnote that the court suggested
that Leguizamo-Medina was “unaffected by Kucana.” Id. at
565 n.4. More importantly, Juarez was a case in which the
petitioners sought “various forms of relief from removal,”
at least one of which — asylum — was subject to judicial
review. 599 F.3d at 561. The comment about Leguizamo-
Medina was thus unnecessary to the outcome. There is also
less to Pawlowska than meets the eye. There, although the
IJ had denied a continuance where the underlying request
was for adjustment of status to permanent residence, there
was no need for this court to decide whether that denial
was reviewable, because the IJ had made clear that he
intended to exercise his discretion to deny the request for
adjustment because of previous visa fraud in any event.
623 F.3d at 1140. Only after concluding that this merits-
based reason was sufficient to preclude review did the
court comment that Leguizamo-Medina bars review of a
continuance decision that is “ancillary” to any of the forms
of relief mentioned in (B)(i).
Other circuits have also stopped short of adopting the
strong version of Leguizamo-Medina. They have acknowl-
edged an inability to review analogous cases without
concluding that the absence of jurisdiction over the merits
Nos. 10-2795 & 10-3973 15
of the final relief sought always bars review of procedural
requests like motions for a continuance or to reopen.
See, e.g., Alzainati v. Holder, 568 F.3d 844, 849-50 (10th Cir.
2 0 0 9) (fin d in g ju r is d i c t i o n a l s i g n i f ic a n c e , fo r
§ 1252(a)(2)(B)(i) purposes, in the ground on which the
BIA bases its decision, reserving possibility of an embed-
ded due process or other legal question); Vargas v.
Holder, 567 F.3d 387, 390 (8th Cir. 2009) (considering
implications of a broad view of jurisdiction-stripping
under (B)(i) for motions to reopen a proceeding
seeking relief for which review would be unavailable,
and rejecting such a rule); Obioha v. Gonzales, 431 F.3d
400, 405-06 (4th Cir. 2005) (acknowledging no jurisdiction
to review a decision to deny cancellation of removal, but
noting that the BIA “never got that far” and finding
reviewable its decision to deny a request to remand).
The common theme that runs through these cases is
the importance of the relation between the resolution of
the procedural request and the disposition of the underly-
ing claim. The court’s inability to review the underlying
claim for relief “is, standing alone, an insufficient basis
to preclude review” of a related procedural motion.
Alzainati, 568 F.3d at 849. Instead, judicial review is fore-
closed by § 1252(a)(2)(B)(i) only if the agency’s rationale
for denying the procedural request also establishes the
petitioner’s inability to prevail on the merits of his underly-
ing claim. That was the case in Pawlowska, in which the
IJ’s decision rested on the petitioner’s fraud. See, e.g.,
Mariuta v. Gonzales, 411 F.3d 361, 365 (2d Cir. 2005)
(“Where a denial is based on the BIA’s ‘merits-deciding’
analysis of the alien’s entitlement to the ultimate
16 Nos. 10-2795 & 10-3973
relief sought, the denial [of a motion to reopen] may
properly be said to be a decision ‘under’ the statutory
provision providing that ultimate relief.”); Pilica v.
Ashcroft, 388 F.3d 941, 948 (6th Cir. 2004) (“[A] motion to
reopen that does not involve the consideration of relief on
the merits should not be treated as ‘regarding’ the granting
of [permanent residence].”).
In keeping with this analysis, we have asserted jurisdic-
tion to review procedural rulings like continuances in a
number of cases decided after Kucana. Thus, for instance,
in Vahora v. Holder, 626 F.3d 907 (7th Cir. 2010), we had
to decide whether we had jurisdiction to review an
IJ’s refusal to close a petitioner’s case administratively so
that it could be joined with his parents’ case. Noting
there that Kucana established the reviewability of an alien’s
request for a continuance, we applied similar reasoning to
administrative closures. Id. at 918. In Mozdzen v.
Holder, 622 F.3d 680 (7th Cir. 2010), we exercised jurisdic-
tion over the denial of a continuance in circumstances quite
like those we face here — that is, a case in which there is no
jurisdiction to review the underlying claim for relief. The
Mozdzen petitioners sought a continuance to pursue
cancellation of removal or adjustment of status after having
committed visa fraud by falling into the trap laid by the
sting known as Operation Durango. Id. at 682; see also
Wroblewska v. Holder, 656 F.3d 473 (7th Cir. 2011). Even
though we would not have been able to review the petition-
ers’ applications for either cancellation or adjustment of
status, see 8 U.S.C. §§ 1229b and 1255, we said that “[w]e
review discretionary decisions such as denials of continu-
ances under the deferential abuse of discretion standard.”
Nos. 10-2795 & 10-3973 17
Id. at 684. In the end, this did the Mozdzens little good, as
we went on to find no abuse of discretion, but this was a
ruling on the merits rather than a jurisdictional decision.
We are persuaded that there are identifiable circum-
stances under which a critical procedural step in a removal
proceeding, such as the denial of a continuance that
is sought for purposes of allowing another agency
to complete its review, the denial of a motion to reconsider,
a refusal to remand, or a refusal to reopen a case, lies
within our jurisdiction even though we are barred
from evaluating the BIA’s ultimate decision in the circum-
stances spelled out in § 1252(a)(2)(B)(i). [Because this
opinion reconciles several competing lines of authority
within the circuit, it has been circulated to all active judges
pursuant to Circuit Rule 40(e). No judge in active service
voted to hear these cases en banc.] Sometimes review will
be possible because, as in Subhan, the challenged action
effectively nullifies the statutory scheme and thus for
all practical purposes raises a question of law. Sometimes
review will be possible because, as in Juarez, the request
for the unreviewable relief will be coupled with a request
for relief like asylum that is reviewable. If, however, it
is impossible to distinguish the challenged action from the
determination on the merits, then jurisdiction is lacking
and the petition must be dismissed.
It is worth recalling that a central theme in Kucana
was the importance of judicial review to protect the
procedural fairness of the agency process. As the Supreme
Court put it, motions to reopen are a “procedural device
serving to ensure that aliens are getting a fair chance to
18 Nos. 10-2795 & 10-3973
have their claims heard.” 130 S. Ct. at 837. This purpose
is, if anything, even more important for aliens like Calma
and Khomyshyn who will be strictly barred from
seeking review of the denial of their claims for adjustment
of status. Kucana emphasized “the presumption favoring
judicial review of administrative action.” Id. at 839. It
noted that “[w]hen a statute is reasonably susceptible to
divergent interpretation,” it should be construed in a way
that perm its review . Id. The provision here,
§ 1252(a)(2)(B)(i), prohibits judicial review of decisions on
adjustment of status, but it says nothing about review
of antecedent procedural decisions such as continuances
that shape the final outcome. We note that our
sister circuits have come to conflicting results on
the question whether judicial review is ever available
in cases where review of the underlying claim for relief
is foreclosed. Compare Thimran v. Holder, 599 F.3d 841,
845 (8th Cir. 2010) (yes), with Freeman v. Holder, 596
F.3d 952, 956 n.2 (8th Cir. 2010) (no); and compare Assaad
v. Ashcroft, 378 F.3d 471, 474 (5th Cir. 2004) (per
curiam) (no), with Rodriguez v. Ashcroft, 253 F.3d 797, 800
(5th Cir. 2001) (yes, unless the Board addressed the merits
of the request for relief).
We should not confuse the unavailability of judicial
review with the unimportance of the kinds of relief that
are covered by § 1252(a)(2)(B)(i): waivers of inadmissibility
(§§ 1182(h) and 1182(i)); cancellation of removal (§ 1229b);
voluntary departure (§ 1229c); and adjustment of status
(§ 1255). These are all measures that Congress has chosen
to make available to deserving aliens; it has simply chosen
at the same time to make the competent agency’s decision
Nos. 10-2795 & 10-3973 19
on the merits of those types of relief final. Sometimes,
when a continuance is requested, the court may not
even know what is at stake. If, for example, an alien
has appeared before an IJ asking both for asylum (a
reviewable decision) or voluntary departure (a non-
reviewable decision), and asks the IJ for a continuance so
that she can decide which one to pursue, the grant
or denial of such a continuance can be reviewed without
upsetting the ultimate finality of the decision on the merits.
Jurisdiction is something that must be ascertainable ex
ante; it cannot depend on events that occur months or years
after the petition is filed.
In summary, decisions like the rulings on continuances
that Calma and Khomyshyn have challenged, which do
not implicate the merits of a final unreviewable order
but instead merely defer the resolution of the merits so that
the process as a whole can be completed with integrity,
may in the right circumstances, and do here, fall within
our jurisdiction. Dave v. Ashcroft, 363 F.3d 649, if it
survived Kucana, is distinguishable from the cases before
us because all three of the decisions at issue in Dave— a
ruling on cancellation of removal, a ruling on a motion
to reconsider the denial of cancellation, and a ruling on the
refusal to reopen the proceeding — were closely linked
with the merits of the unreviewable decision on cancella-
tion. And Huang v. Mukasey, 534 F.3d 618 (7th Cir.
2008), relied entirely on the decision in Kucana from this
court that the Supreme Court reversed. See 533 F.3d
534 (7th Cir. 2008). Having satisfied ourselves that we
have jurisdiction over these petitions, we can move on to
the merits.
20 Nos. 10-2795 & 10-3973
III
Unfortunately for both petitioners, our discussion
here will be brief. The standard of review, as we have
already noted, is one that gives great deference to the
responsible IJ. An IJ has the discretion to grant a continu-
ance for “good cause shown,” see 8 C.F.R. § 1003.29, but
as long as he gives a reason for his decision, this court
will uphold the decision “unless it ‘was made without a
rational explanation, inexplicably departed from estab-
lished policies, or rested on an impermissible basis such
as invidious discrimination against a particular race or
group.’ ” Victor v. Holder, 616 F.3d 705, 708 (7th Cir.
2010), quoting Achacoso-Sanchez v. INS, 779 F.2d 1260,
1265 (7th Cir. 1985); see Subhan, 383 F.3d at 595. In addi-
tion, the principle of harmless error applies to administra-
tive proceedings in general, and to immigration rulings
in particular. See Yuan v. Att’y Gen. of the United States,
642 F.3d 420, 427 (3d Cir. 2011); Victor, 616 F.3d at 710;
Japarkulova v. Holder, 615 F.3d 696, 701 (6th Cir. 2010);
Alam v. Gonzales, 438 F.3d 184, 187-88 (2d Cir. 2006);
Ngarurih v. Ashcroft, 371 F.3d 182, 191 n.8 (4th Cir. 2004).
In Calma’s case, it is the harmless error principle that
dooms his effort to move ahead with his petition. The
Board has already dismissed Calma’s appeal from the
revocation of his son’s I-130 petition. That decision means
that Calma cannot show prejudice from the IJ’s denial
of his continuance motion. Without the successful I-
130 petition, he cannot adjust his status. See 8 U.S.C.
§ 1255(a); Lockhart v. Napolitano, 573 F.3d 251, 254 (6th
Cir. 2009); Afzal v. Holder, 559 F.3d 677, 678 (7th Cir.
Nos. 10-2795 & 10-3973 21
2009); Labojewski v. Gonzales, 407 F.3d 814, 822 (7th Cir.
2005). No amount of deferral of Calma’s proceedings
could have any effect on the final outcome. For this reason,
his petition for review must be denied.
Khomyshyn faces a different problem. The IJ in his case
provided a sound reason for denying the request for
a continuance. The judge explained that four years was
too long to wait to allow for Khomyshyn’s adjustment,
and he refused to speculate about the ultimate eligibility
of Khomyshyn’s wife for naturalization (not to mention
what steps on her husband’s behalf she would or
would not take if she attained U.S. citizenship).
Khomyshyn argues that the IJ ignored his argument
that his wife would soon be eligible for citizenship, but
the record does not support him. The IJ explicitly acknowl-
edged this possibility, but then refused, in the absence
of any evidence that naturalization was necessarily forth-
coming, to assume that it would come to pass. There was
no abuse of discretion in the IJ’s decision to take into
account the speculative nature of Khomyshyn’s hopes
for later adjustment, as well as the potentially lengthy time
that would elapse while he waited.
For these reasons, we D ENY both Calma’s petition for
review (No. 10-2795) and Khomyshyn’s petition for review
(No. 10-3973).
12-13-11