NOT PRECEDENTIAL
UNITED STATES COURT OF APPEAL
FOR THE THIRD CIRCUIT
No. 09-2582
MARIA CONTLA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review from an Order of the
Board of Immigration Appeals
(BIA-1 : A078-705-742)
Immigration Judge: Hon. Annie S. Garcy)
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 22, 2010
BEFORE: SMITH, FISHER and COWEN, Circuit Judges
(Filed: July 8, 2010)
OPINION
COWEN, Circuit Judge.
Maria Contla, a native and citizen of Mexico, petitions this Court to review the
decision of the Board of Immigration Appeals (“BIA”) affirming the denial of Contla’s
motion for a continuance by the Immigration Judge (“IJ”). We will grant Contla’s
petition and remand the case for additional proceedings consistent with this opinion.
I. BACKGROUND
Contla entered this country in March 1991 without inspection. She is the mother
of three minor children, all of whom are citizens of the United States. On September 29,
2006, Contla received a Notice to Appear, charging her as removable for being present in
the United States without having been admitted or paroled, in violation of I.N.A.
§ 212(a)(6)(A)(i), and 8 U.S.C. § 1182(a)(6)(A)(i). She filed a petition seeking
cancellation of removal under 8 U.S.C. § 1229b(b)(1), asserting that she had been
physically present in the United States for more than eighteen years and that her removal
would cause extreme hardship to her three minor children.1 Alternatively, Contla
petitioned for voluntary departure.
The IJ conducted an initial removal proceeding on June 19, 2007. The IJ
adjourned the proceeding until April 24, 2008, to give Contla and her prior counsel the
opportunity to prepare their case. The IJ ordered the parties to submit their evidence by
March 20, 2008. In early 2008, Contla and her children moved several times until they
secured permanent housing. On March 13, 2008, Contla visited the office of her prior
counsel to give him her new address and to inquire as to the evidence necessary for her
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Contla’s husband, also a citizen of Mexico who entered the United States without
inspection, was granted voluntary departure. He left the United States in June 2007
pursuant to that order and since that time Contla has raised her children as a single parent.
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case. At the conclusion of this meeting, it was her understanding that her attorney would
update the IJ with her change of address and would contact Contla by mail to prepare for
the forthcoming removal proceeding. There was no further communication between
Contla and her counsel before that proceeding. Contla and her attorney failed to submit
any evidence to the IJ by the March 20, 2008, deadline.
Contla and her counsel appeared before the IJ at the April 24, 2008, removal
proceeding. She brought one set of original documents to the proceeding. Her attorney
had not reviewed these documents before the hearing and neither she nor her attorney
had the requisite three sets of copies. Her attorney indicated that they missed the
deadline due to a misunderstanding. He stated that he attempted to call Contla but her
telephone numbers were disconnected. He also stated that he did not attempt to contact
her by mail at her new address. Her attorney requested a continuance to enable him to
review the documents with her and to submit the requisite three sets. The government
opposed the request.
The IJ questioned Contla and her counsel as to why they failed to submit the
evidence. In issuing an oral decision, the IJ concluded that Contla was at fault for the
delay because she failed to give her attorney her cellular telephone number and failed to
contact her attorney when she did not hear from him by mail. The IJ concluded that the
misunderstanding between Contla and counsel did not constitute good cause as she
caused the delay. The IJ further indicated that granting the adjournment would be futile
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because, despite Contla’s request for time to meet with her attorney, the IJ believed that
Contla’s conduct demonstrated that she would not pursue any such meeting with her
attorney. The IJ denied the request for adjournment. The IJ gave Contla the opportunity
to testify in support of her petition for cancellation of removal. Contla, however,
declined because she and her attorney had not had the opportunity to prepare. The IJ
then denied her petition for failure to present any evidence, but granted her petition for
voluntary departure.
The BIA affirmed the IJ in all respects, issuing its own opinion. The BIA
explained that Contla failed to demonstrate good cause for the continuance and failed to
meet her burden with respect to cancellation of removal.
II. DISCUSSION
When “the BIA adopts and affirms the decision of the IJ, as well as provides its
own reasoning for its decision, [we] review[] both the decisions of the IJ and the BIA.”
Hashmi v. Att’y Gen., 531 F.3d 256, 259 (3d Cir. 2008). An IJ “may grant a motion for
continuance for good cause shown.” 8 C.F.R. § 1003.29. “This Court has jurisdiction to
review an IJ’s decision to deny a continuance, and does so for abuse of discretion.”
Hashmi, 531 F.3d at 259. “[T]he question whether denial of a continuance in an
immigration proceeding constitutes an abuse of discretion cannot be decided through the
application of bright-line rules; it must be resolved on a case by case basis according to
the facts and circumstances of each case.” Id. at 259-60 (quoting Ponce-Leiva
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v.Ashcroft, 331 F.3d 369, 377 (3d Cir. 2003).
We conclude that the IJ abused its discretion in denying Contla’s motion for
continuance. The record suggests that the delay in submitting evidence in support of the
petition for cancellation of removal is due to a misunderstanding between Contla and her
prior counsel, which is likely due to a language barrier. The request for a brief
continuance, Contla’s first, was not unreasonable. At the time of the request, Contla’s
case had been pending for less than one year. A brief adjournment would not have
prejudiced the government. Moreover, adjournment would not have been futile. The
record suggests that Contla is prima facie eligible for cancellation of removal under 8
U.S.C. § 1229b(b)(1). She has lived in this country for over eighteen years, has no
criminal record, and is the sole financial support for her three minor children who are
citizens of the United States. Contla’s petition could have been resolved on its merits
with little delay. It was an abuse of discretion to deny a brief continuance under these
circumstances.2
III. CONCLUSION
We will grant Contla’s petition and remand the case for additional proceedings
consistent with this opinion.
2
Because we will grant Contla’s petition on the ground that the IJ abused its
discretion in denying her request for a continuance, we decline to address her due process
challenge. We express no opinion concerning the ultimate resolution of this matter.
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