NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-3653
___________
VICTOR PACHECO,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
_______________________
On Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A089-006-068
(U.S. Immigration Judge: Honorable Frederic Leeds)
______________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 10, 2011
Before: SCIRICA, BARRY and VANASKIE, Circuit Judges.
(Filed: May 4, 2011)
_________________
OPINION OF THE COURT
_________________
SCIRICA, Circuit Judge.
Victor Pacheco, an Ecuadorian citizen, petitions for review of the Board of
Immigration Appeals‟ (BIA) order dismissing the appeal of an Immigration Judge‟s
refusal to grant a sixth continuance in his removal proceedings. We will affirm the BIA‟s
order and deny Pacheco‟s petition for review.
I.
Pacheco entered the United States without inspection in 2001 at the age of
fourteen. While living and working illegally in New Jersey, he formed a relationship
with a United States citizen, Stephanie Cruz, who was then a ward of the state. Pacheco
fathered a child by Cruz. Cruz, who was seventeen years old at the time, gave birth to the
child in 2008.
On December 30, 2008, the Department of Homeland Security served Pacheco
with a Notice to Appear charging him with being subject to removal because he was an
alien present in the United States who had not been admitted or paroled. See 8 U.S.C. §
1182(a)(6)(A)(i). He was taken into federal immigration detention. Subsequently, the
State of New Jersey began proceedings to terminate the parental rights of Pacheco and
Cruz, in part because Cruz was a minor who was herself a ward of the state.
Pacheco first appeared before the immigration court on January 12, 2009. At that
time, he was granted a continuance to obtain counsel. He again appeared before the
immigration court without counsel on February 2, 2009, and requested an additional
continuance to obtain counsel, which the immigration judge granted. He subsequently
obtained counsel, who conceded removability on February 23, 2009, but requested and
was granted four more continuances to investigate options for relief from removal.
Pacheco‟s counsel noted as early as March 16, 2009, that Pacheco intended to
apply for discretionary parole. But neither Pacheco nor his counsel took any affirmative
action to file an application. On April 13, 2009, Pacheco and counsel again appeared
2
before the IJ and requested yet another continuance to apply for discretionary parole into
the United States. See 8 U.S.C. § 1182(d)(5)(A).
During the April hearing, Pacheco contended he might be eligible for discretionary
parole, explaining his circumstances may comprise “urgent humanitarian reasons or
significant public benefit,” within the meaning of the Immigration and Nationality Act
(INA) § 212(d)(5)(A), 8 U.S.C. § 1182(d)(5)(A). According to Pacheco, if he were
granted parole, he could marry Cruz, which could subsequently form the basis of an
application for adjustment of status under INA § 245(a), 8 U.S.C. § 1255(a), entitling him
to relief from removal. The IJ, taking into account Pacheco‟s parental rights, noted the
situation was “sympathetic,” but denied the request for a continuance because Pacheco
conceded removability and conceded he had no relief immediately available to him, and
because the Department of Homeland Security indicated through counsel it would not
exercise its discretion if Pacheco were to apply for parole. The BIA dismissed the
appeal, discussing the IJ‟s decision and noting among other factors that six prior
continuances had been granted in the case.
Pacheco applied for a stay of removal, which we granted, and he now timely
petitions for review of the BIA‟s decision.1
II.
As a threshold matter, we address the government‟s contention that we lack
jurisdiction to hear two of Pacheco‟s arguments. The government contends Pacheco
1
We have jurisdiction to review final orders of removal under § 242 of the Immigration
and Nationality Act, 8 U.S.C. § 1252(a)(1).
3
failed to exhaust two issues: (1) that the IJ and the BIA failed to adequately consider his
parental rights, including the termination of parental right proceedings, when denying the
request for a continuance to apply for discretionary parole; and (2) that the IJ and the BIA
failed to adequately consider his parental rights as an independent basis for a continuance
even absent any available relief from removal.
We have interpreted INA‟s administrative exhaustion provisions, see 8 U.S.C. §
1252(d)(1), to require a petitioner to have exhausted an issue below in order to raise it on
appeal. See Lin v. Att’y Gen., 543 F.3d 114, 120 (3d Cir. 2008). But we have explained
“[o]ur „liberal exhaustion policy‟ . . . instruct[s] that the notice of appeal [to the BIA]”
need only set forth “sufficient facts and law to inform the BIA of the basis for the
appeal.” Hoxha v. Holder, 559 F.3d 157,163 (3d Cir. 2009).
In his notice of appeal to the BIA, Pacheco raised only the IJ‟s determination there
was no relief from removal available to him and he was not then eligible for adjustment
of status.2 In his brief submitted to the BIA, he explained the factual circumstances of the
case, including that his daughter was in the custody of the New Jersey Division of Youth
and Family Services and termination of parental right proceedings were ongoing. He
then contended that the IJ abused his discretion by denying the continuance without
providing additional opportunities to file for discretionary parole. Specifically, Pacheco
2
We note in the notice of appeal to the BIA Pacheco specifically asserted the conditional
parole conferred by making a bond payment contemplated by INA § 236, 8 U.S.C. §
1226(a)(2), would constitute a “parole[] into the United States” sufficient for adjustment
of status under INA § 245, 8 U.S.C. § 1255(a). Pacheco does not raise this argument on
appeal, but we recently held a conditional parole is not a “parole[] into the United States”
4
argued he wished to file for relief based on “urgent humanitarian reasons” or on the basis
that the parole would yield “significant public benefit,” see 8 U.S.C. § 1182(d)(5)(A); 8
C.F.R. § 212.5(b), but the government attorney denied the unfiled request without having
the legal authority to do so.
Based on the notice of appeal and brief submitted to the BIA, Pacheco‟s first
contention, that his parental rights were not adequately considered in relation to his
request for a continuance to file for discretionary parole, was exhausted below because
his “application made the Board aware of what issues were being appealed.” Wu v.
Ashcroft, 393 F.3d 418, 422 (3d Cir. 2005). Reference to the conditions for discretionary
parole combined with an explanation of Pacheco‟s situation was sufficient to preserve the
issue for appeal. Accordingly, we have jurisdiction to reach this issue.
Conversely, Pacheco‟s second contention, that his parental rights form a sufficient
independent basis justifying a continuance even in the absence of available relief from
removal, was not exhausted below. The notice of appeal and brief discuss only
discretionary parole arguably available to Pacheco. He now contends that his parental
rights at stake in the termination of parental rights proceedings are an “extraordinary
circumstance” that may justify an open-ended grant of a continuance even in the absence
of a pending visa petition. See Khan v. Att’y Gen., 448 F.3d 226, 234 (3d Cir. 2006).
The bare fact that Pacheco‟s parental rights were noted in his brief was insufficient to
adequately inform BIA of this issue. Although we employ a liberal exhaustion policy, a
enabling adjustment of status under INA § 245, 8 U.S.C. § 1255(a). See Delgado-
Sobalvarro v. Att’y Gen., 625 F.3d 782, 787 (3d Cir. 2010).
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petitioner who places the BIA on notice of certain facts will not be given the benefit of all
legal arguments that could possibly be supported by those facts. Here, Pacheco failed to
exhaust the argument that his parental rights form an independent and sufficient basis for
a continuance absent any available relief from removal. Accordingly, we do not have
jurisdiction to reach this issue.
III.3
Pacheco contends the IJ abused his discretion in two interrelated ways. First, he
argues the DHS counsel purported to deny his yet-to-be-filed application for
discretionary parole, and the IJ treated counsel‟s statements as an authoritative denial of
parole. Second, and related, he argues the IJ and the BIA did not give adequate
consideration to his parental rights, which he contends formed a strong basis for his
potential application for discretionary parole. These arguments lack merit.
As discussed, Pacheco‟s contentions turn on the availability of discretionary
parole which could enable him to apply for adjustment of status if Cruz were to marry
him. Aliens who have entered without inspection are eligible for discretionary parole
3
An IJ may, “grant a motion for continuance for good cause shown.” 8 C.F.R. §
1003.29. Accordingly, we review the denial of a request for a continuance for an abuse
of discretion. See Khan v. Att’y Gen., 448 F.3d 226, 233 (3d Cir. 2006). An abuse of
discretion occurs when a decision is arbitrary, irrational, or contrary to law. Tipu v. INS,
20 F.3d 580, 582 (3d Cir. 1994). We have emphasized “[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.” Ponce-Leiva v. Ashcroft,
331 F.3d 369, 377 (3d Cir. 2003) (quotation omitted). Where, as here, the BIA “adopts
the findings of the IJ and discusses some of the bases for the IJ‟s decision,” we review the
decisions of both the IJ and the BIA. Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004).
6
into the United States under INA §212(d)(5)(A) which is granted “on a case-by-case
basis for urgent humanitarian reasons or significant public benefit.” 8 U.S.C.
1182(d)(5)(A).4 The Attorney General may adjust the status of an alien “paroled into the
United States . . . to that of an alien lawfully admitted for permanent residence if (1) the
alien makes an application for such adjustment, (2) the alien is eligible to receive an
immigrant visa and is admissible to the United States for permanent residence, and (3) an
immigrant visa is immediately available to him at the time his application is filed.” INA
§245(a), 8 U.S.C. §1255(a). A United States citizen may file an I-130 petition with DHS
on behalf of an alien who is an “immediate relative”—including a spouse. 8 U.S.C. §§
1151(b)(2)(A)(i), 1154(a)(1)(A)(i); 8 C.F.R. § 204.1(a)(1). The alien must concurrently
or later file an application for adjustment of status. 8 U.S.C. § 1255(a)(1); 8 C.F.R. §
245.1(a). If the marriage occurs after the onset of removal proceedings, an alien is
4
Such parole “would generally be justified only on a case-by-case basis” for aliens
within the following groups:
(1) Aliens who have serious medical conditions in which continued
detention would not be appropriate;
(2) Women who have been medically certified as pregnant;
(3) Aliens who are defined as juveniles in § 236.3(a) of this chapter . . . .
(4) Aliens who will be witnesses in proceedings being, or to be, conducted
by judicial, administrative, or legislative bodies in the United States; or
(5) Aliens whose continued detention is not in the public interest as
determined by those officials identified in paragraph (a) of this section.
8 C.F.R. § 212.5(b).
7
ineligible for adjustment of status unless he or she establishes the marriage is bona fide.
8 C.F.R. § 245.1(c)(8)(iii)(F).
Before the IJ, the government explained that Pacheco had not filed an application
for discretionary parole and there was no relief from removal within the IJ‟s jurisdiction.
The IJ engaged in a colloquy with DHS counsel asking about the likelihood Pacheco
would be granted parole. When asked directly whether he could make a ruling on
discretionary parole on the spot, DHS counsel stated, “[n]ot right off the top, Judge.”
When the IJ later asked DHS counsel how long a determination would take, he responded
“I can‟t tell you.” As the colloquy progressed, DHS counsel later opined, “DHS/ICE will
not agree to parole [Pacheco] in.”
Subsequently, the IJ noted during the hearings that the government “says this is no
different than all the other EWI scenarios they have. So, there‟s nothing compelling
about it . . . .” In his oral opinion issued from the bench, the IJ summed up by stating
“[t]he Department of Homeland Security has indicated they will not exercise [their]
discretion [to parole the petitioner in],” and further, that “the Department of Homeland
Security has chosen not to exercise its discretion.” Pacheco points to this as evidence that
the IJ and BIA erred as a matter of law by taking counsel‟s word as a purportedly
authoritative denial of discretionary relief when counsel did not have the authority to
make such a determination.
This gets the cart before the horse—despite six prior continuances, Pacheco had
not yet requested discretionary relief when the IJ denied an additional continuance. DHS
counsel could not and did not purport to rule on an application that had not been filed.
8
We read the colloquy in its entirety as DHS counsel opining on the likelihood Pacheco
would be granted discretionary relief under the criteria set forth in 8 C.F.R. § 212.5(b)
should he later apply. It was within the IJ‟s discretion to consider this factor in declining
to grant an additional continuance. See Hashmi v. Att’y Gen., 531 F.3d 256, 261 (3d Cir.
2008) (suggesting an IJ‟s determination an application was likely to be denied could
support an IJ‟s denial of a continuance); cf. In re Garcia, 16 I. & N. Dec. 653, 657 (BIA
1978) (noting it would be within an IJ‟s discretion to deny a request for a continuance if
he believes an adjustment application would be denied in the exercise of discretion),
modified on other grounds as recognized in In re Arthur, 20 I & N. Dec. 475 (BIA 1992).
Pacheco also contends the IJ and the BIA abused their discretion in denying a
continuance because they failed to take his parental rights into account.5 As a
preliminary matter, the IJ appears to have considered Pacheco‟s parental rights when he
noted in his opinion he was “sympathetic” to Pacheco and Cruz. But more importantly,
the relevance Pacheco accords these rights—that they could have made him eligible for
discretionary parole—obscures the fact that he failed to seek discretionary parole despite
ample opportunity to file an application. The IJ and the BIA faced “only the speculative
possibility that at some point in the future,” Khan, 448 F.3d at 235 (quotation omitted),
Pacheco might apply for parole, parole might be granted enabling him to marry Cruz if
she were willing, who could then file for an I-130 enabling Pacheco to apply for an
adjustment of status. Moreover, the IJ had before him statements by DHS counsel
5
Petitioner explicitly raises this as a matter of administrative procedure, disavowing any
constitutional claim. Reply Br. for Pet‟r at 7.
9
indicating that Pacheco‟s circumstances would not normally be grounds for discretionary
parole. We have explained that denial of a continuance request “is squarely within the
IJ‟s broad discretion” when “ an alien has failed to submit a visa petition.” Khan, 448
F.3d at 234. Here, absent prima facie eligibility to adjust, and given the unlikelihood of
Pacheco being granted discretionary parole, the IJ acted well within his discretion in
denying the continuance. BIA discussed these reasons and dismissed the appeal.
Accordingly, neither the IJ nor the BIA abused its discretion.
IV.
For the foregoing reasons, we will affirm the BIA‟s order and deny the petition for
review.
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