09-0329-ag
Freire v. Holder
1 UNITED STATES COURT OF APPEALS
2
3 FOR THE SECOND CIRCUIT
4
5
6
7 August Term, 2010
8
9 (Argued: May 4, 2011 Decided: May 27, 2011)
10
11 Docket No. 09-0329-ag
12
13
14 ALTAIR CLAUDIO FREIRE,
15
16 Petitioner,
17
18 –v.–
19
20 ERIC H. HOLDER, JR., Attorney General of the United States,
21
22 Respondent.*
23
24
25
26 Before:
27 MINER, WALKER, and WESLEY, Circuit Judges.
28
29 Petition for review of a Board of Immigration Appeals
30 decision, which dismissed an appeal from an immigration
31 judge’s removal order and denied Petitioner’s motion for
32 remand.
33
34 PETITION GRANTED.
35
36
37
38 JUSTIN CONLON, Law Offices of Justin Conlon,
39 North Haven, CT, for Petitioner.
40
*
The Clerk of the Court is directed to amend the official
caption in this action to conform with that of this opinion.
1 LINDSEY CORLISS, Attorney, Office of Immigration
2 Litigation, Civil Division, (Tony West,
3 Assistant Attorney General, Ada E.
4 Bosque, Senior Litigation Counsel, Mona
5 Maria Yousif, Trial Attorney, on the
6 brief), for Respondent Eric H. Holder,
7 Jr., United States Attorney General,
8 Washington, D.C.
9
10
11 PER CURIAM:
12 Petitioner Altair Claudio Freire, a native and citizen
13 of Brazil, seeks review of a January 9, 2009 order of the
14 Board of Immigration Appeals (“BIA”), which (1) dismissed
15 Freire’s appeal of an April 18, 2006 decision of Immigration
16 Judge (“IJ”) Michael W. Straus ordering Freire’s removal to
17 Brazil, and (2) denied Freire’s motion for remand or
18 continuance. In re Altair Claudio Freire, No. A076 533 611
19 (B.I.A. Jan. 9, 2009), aff’g No. A076 533 611 (Immig. Ct.
20 Hartford, Conn. Apr. 18, 2006). For the following reasons,
21 we grant the petition for review. The decision of the BIA
22 is vacated, and the case is remanded to the BIA for further
23 proceedings consistent with this opinion.
24 I. BACKGROUND
25 Altair Claudio Freire, a native and citizen of Brazil,
26 was paroled into the United States in 1999 as a material
27 witness in a criminal case. In 2002, Freire’s employer
2
1 petitioned the United States Citizenship and Immigration
2 Services (“USCIS”) for an employment visa on Freire’s
3 behalf. USCIS approved that petition in 2003. Freire then
4 filed, but subsequently withdrew, an application for
5 adjustment of status.
6 In 2005, after Freire’s parole status had expired,
7 Freire was served with a Notice to Appear charging him with
8 removability as an arriving alien who was not in possession
9 of a valid entry document at the time of his application for
10 admission. Freire denied his removability and asked the IJ
11 to terminate the proceedings without prejudice so that he
12 could re-file his adjustment application with USCIS. Freire
13 also asked the IJ for a continuance because, in a separate
14 case, this Court was considering the issue of whether
15 arriving aliens were permitted to adjust their status while
16 in removal proceedings.
17 In an oral decision, the IJ denied Freire a
18 continuance. The IJ found that under former 8 C.F.R. §
19 1245.1(a), Freire was not eligible to adjust his status
20 because he was an arriving alien and that “there [was] no
21 basis to continue the matter pending a possible Second
22 Circuit decision.” The IJ found Freire inadmissible and
23 ordered his removal to Brazil.
3
1 Freire appealed to the BIA. He noted that in May 2006
2 the United States Attorney General had enacted new
3 regulations allowing USCIS to adjudicate the adjustment
4 applications of arriving aliens. Additionally, Freire
5 submitted evidence that he had filed an adjustment
6 application with USCIS. Thus, he asked the BIA either to
7 “administratively close or terminate his proceedings while
8 the adjustment application is pending with [USCIS]” or,
9 alternatively, “suspend making a decision in his case — or
10 remand his case to the IJ with instructions to continue his
11 case — until a decision from [USCIS] is made on the
12 adjustment application.” In 2007, the BIA dismissed the
13 appeal and denied the motion to remand, finding that
14 “[n]either the Board nor the Immigration Judge has
15 jurisdiction over whether [Freire] may adjust his status in
16 this country.” Further, the BIA determined that it could
17 not delay the removal proceedings pending USCIS’s
18 determination.
19 Freire petitioned this Court for review of the agency’s
20 denial of his request for a continuance. Freire and the
21 government entered into a Court-approved joint stipulation
22 to remand the proceedings to the agency to allow the BIA to
23 reconsider Freire’s appeal and motion in light of this
4
1 Court’s decision in Ni v. BIA, 520 F.3d 125 (2d Cir. 2008).
2 In Ni, we held that an IJ’s lack of jurisdiction to
3 adjudicate an arriving alien’s adjustment application did
4 not, by itself, provide an adequate reason for the BIA to
5 deny an arriving alien’s motion to reopen while the
6 petitioner pursued adjustment of status with USCIS. Id. at
7 129–30. Additionally, we noted the BIA’s “established
8 policy of granting motions to reopen in order to permit the
9 adjudication of status-adjustment applications.” Id. at 131
10 n.4 (citing Matter of Garcia, 16 I. & N. Dec. 653, 657
11 (B.I.A. 1978)). We instructed that if the BIA decided on
12 remand to deny the motions to reopen, it “should explain how
13 doing so comports with BIA policy in this area.” Id.
14 On remand, the BIA again dismissed Freire’s appeal and
15 denied his request for a remand or continuance. The BIA
16 stated the following:
17 We acknowledge that the denial of a motion
18 to reopen or a request for a continuance to
19 await adjudication of an application before the
20 USCIS or some other agency may result in a loss
21 of relief. However, we cannot find it within
22 our authority to grant relief based on an
23 application over which we ultimately have no
24 jurisdiction. To do so would leave us open to
25 the whims and time lines of other agencies
26 which might or might not communicate the
27 outcome of a particular application to us.
28
29
5
1 Further, in discussing its departure from Matter of Garcia,
2 the BIA stated that unlike in cases such as Matter of
3 Garcia, here the BIA had “neither the authority to assess
4 prima facie eligibility nor the authority to review the
5 denial [of Freire’s adjustment of status application] on
6 appeal.” Accordingly, the BIA did not “find it judicious to
7 grant a continuance or reopening to await a decision over
8 which [it has] no control.” Freire timely petitioned this
9 Court for review of the BIA’s decision.
10 II. DISCUSSION
11 We review only the decision the BIA issued following
12 remand from this Court. See Xia Fan Huang v. Holder, 591
13 F.3d 124, 127 (2d Cir. 2010) (per curiam). We review the
14 BIA’s denial of a continuance for abuse of discretion. See
15 Sanusi v. Gonzales, 445 F.3d 193, 199 (2d Cir. 2006) (per
16 curiam). The BIA abuses its discretion if its “decision
17 rests on an error of law” or a “clearly erroneous factual
18 finding” or if its decision “cannot be located within the
19 range of permissible decisions.” Rajah v. Mukasey, 544 F.3d
20 449, 453 (2d Cir. 2008).
21 Freire argues that the BIA abused its discretion in
22 denying his request for a continuance — his motion to remand
23 or temporarily terminate removal proceedings — while he
6
1 sought adjustment of status before the USCIS. We agree.1
2 To the extent that the BIA denied Freire’s request for
3 a continuance on the basis that it lacked the authority to
4 grant the continuance, the denial constitutes legal error.
5 Immigration judges have broad discretionary authority to
6 “grant a motion for continuance for good cause shown.”
7 8 C.F.R. § 1003.29 (2011). The BIA correctly stated that
8 IJs and the BIA do not have jurisdiction to adjudicate most
9 arriving aliens’ applications for adjustment of status. See
10 id. § 1245.2(a)(1)(ii). However, that does not prevent IJs
11 or the BIA from adjudicating motions for continuance in
12 removal proceedings over which they already have
13 jurisdiction. Cf. Matter of Hashmi, 24 I. & N. Dec. 785,
14 790–91 (B.I.A. 2009) (setting forth standards for
15 determining a motion for continuance where a visa petition
16 is pending before USCIS, while recognizing that “Immigration
17 Judges do not have jurisdiction to decide visa petitions”).
18 Contrary to the government’s argument, the BIA’s
19 conclusion in Matter of Yauri, 25 I. & N. Dec. 103, 108-10
1
We need not, and do not, address Freire’s alternative argument
that the Attorney General’s regulations preventing IJs from
adjudicating arriving aliens’ applications for adjustment of status
are invalid. See Eligibility of Arriving Aliens in Removal
Proceedings to Apply for Adjustment of Status and Jurisdiction to
Adjudicate Applications for Adjustment of Status, 71 Fed. Reg. 27,585
(May 12, 2006).
7
1 (B.I.A. 2009), that it did not have jurisdiction to grant a
2 motion to reopen based on an arriving alien’s application
3 for adjustment of status pending with USCIS is inapposite to
4 this case. There, the BIA concluded that it lacked the
5 authority “to reopen proceedings to effectively grant . . .
6 a ‘stay’ of a final order while the alien pursues an
7 independent adjustment of status application with the
8 USCIS.” Id. at 109. The same reasoning does not apply
9 here, however, where Freire sought a continuance of his
10 ongoing removal proceedings rather than a reopening of an
11 administratively final order of removal. Indeed, the BIA
12 stated in Yauri that “[t]here can be sound reasons to
13 continue or administratively close proceedings while matters
14 outside the Immigration Judge’s jurisdiction are resolved.”
15 Id. at 111 n.8.
16 Additionally, to the extent that the BIA relied on its
17 lack of jurisdiction to adjudicate the underlying adjustment
18 of status application as its sole ground for denying Freire
19 a continuance, the BIA repeated the error identified in Ni.
20 In Ni, the BIA denied several motions to reopen removal
21 proceedings on the sole basis that it lacked jurisdiction
22 over the underlying applications for adjustment of status.
23 520 F.3d at 129. In finding that these decisions
8
1 constituted an abuse of the BIA’s discretion, we held that
2 “rote recital of a jurisdictional statement — even if
3 technically accurate — does not adequately discharge the
4 BIA’s duty to consider the facts of record relevant to the
5 motion and provide a rational explanation for its ruling.”
6 Id. at 129–130 (internal quotation marks omitted).
7 Here, the BIA stated that to grant a continuance of
8 removal proceedings based upon an adjustment of status
9 petition pending before another agency would subject the BIA
10 to “the whims and time lines of other agencies which might
11 or might not communicate the outcome of a particular
12 application” to the BIA. Furthermore, the BIA stated that
13 it did not find it “judicious to grant a continuance or
14 reopening to await a decision over which [it has] no
15 control.” Though they contain some elaboration, the BIA’s
16 statements still fail to satisfy Ni. The BIA simply
17 explained why it found the grant of a continuance in these
18 types of situations imprudent as a general practice. It did
19 not evaluate the merits of granting or denying Freire a
20 continuance of his removal proceedings based on the specific
21 facts of this record. Cf. Clifton v. Holder, 598 F.3d 486,
22 494 (8th Cir. 2010) (explaining that in addressing a
23 continuance motion, the BIA was required to consider “how
9
1 the [] evidence [that the petitioner submitted, showing her
2 application for adjustment of status pending before USCIS]
3 might affect the IJ’s decision to continue the case”).
4 Several months after it dismissed Freire’s appeal, the
5 BIA in a separate matter enunciated a clear standard to
6 guide its exercise of discretion when aliens in removal
7 proceedings request a continuance to apply for adjustment of
8 status. See Hashmi, 24 I. & N. Dec. at 790–91; see also
9 Matter of Rajah, 25 I. & N. Dec. 127, 130 (B.I.A. 2009)
10 (applying Hashmi factors to alien seeking employment-based
11 adjustment of status). Although, unlike in Hashmi, Freire’s
12 adjustment of status application is to be decided by another
13 agency, we see no reason why the BIA should not consider the
14 Hashmi factors in deciding Freire’s motion for continuance.
15 Indeed, the very purpose for the continuance requested in
16 Hashmi was to allow USCIS to adjudicate a visa petition that
17 the “Immigration Judge[ did] not have jurisdiction to
18 decide.” Hashmi, 24 I. & N. Dec. at 791. Thus, on remand,
19 the BIA should either follow the Hashmi factors in
20 determining whether to grant Freire’s motion for continuance
21 or explain why application of those factors is inappropriate
10
1 in the present case.2
2 Because the BIA failed to “provide a rational
3 explanation for its ruling” that is tied to the record, the
4 BIA abused its discretion in denying Freire’s motion for
5 remand or continuance. Ni, 520 F.3d at 129-30 (internal
6 quotation marks omitted). To be clear, as in Ni, we do not
7 address whether Freire’s motion for continuance should be
8 granted; we leave that decision for the BIA to address in
9 the first instance. Id. at 131.3 If the BIA decides on
10 remand to deny Freire’s motion, “it must provide adequate
11 reasons for doing so, thereby furnishing this Court with a
12 meaningful opportunity to review any such denial.” Id.
2
Moreover, the decision to deny Freire a continuance did not
satisfactorily explain its deviation from the BIA’s decision in Matter
of Garcia, 16 I. & N. Dec. 653, 657 (B.I.A. 1978), modified on other
grounds by Matter of Arthur, 20 I. & N. Dec. 475 (B.I.A. 1992),
announcing the general rule that a continuance should be granted where
an alien establishes his prima facie eligibility for adjustment of
status. See Ni, 520 F.3d at 131 n.4 (noting that the BIA needs to
explain any departure from Matter of Garcia). The BIA explained that
Matter of Garcia did not apply to aliens with applications for
adjustment of status pending before other agencies because IJs and the
BIA do not have the authority to assess such aliens’ prima facie
eligibility for adjustment. But the BIA gave no explanation as to why
it was without authority to consider Freire’s prima facie eligibility
to adjust status for the purpose of determining whether to grant a
continuance.
3
The government cites Scheerer v. U.S. Attorney General, in
which the Eleventh Circuit found no abuse of discretion where the BIA
denied a request for a continuance based only on the fact that it did
not have jurisdiction to adjudicate the alien’s adjustment application
pending with USCIS. 513 F.3d 1244, 1254–55 (11th Cir. 2008). We do
not follow Scheerer to the extent that it is contrary to Ni’s holding
that recitation of the BIA’s lack of jurisdiction to adjudicate the
underlying application, without more, constitutes an abuse of
discretion.
11
1 III. CONCLUSION
2 For the foregoing reasons, the petition for review is
3 GRANTED. The January 9, 2009 decision of the BIA is
4 VACATED, and the case is REMANDED to the BIA for proceedings
5 consistent with this opinion.
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