Ahmed v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MANIK AHMED, 
Petitioner, No. 06-71631
v.
 Agency No.
A076-613-636
ERIC H. HOLDER Jr., Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
April 8, 2009—Pasadena, California

Filed June 24, 2009

Before: Harry Pregerson and David R. Thompson, Circuit
Judges, and Jeremy D. Fogel,* District Judge.

Opinion by Judge Thompson

*The Honorable Jeremy D. Fogel, United States District Judge for the
Northern District of California, sitting by designation.

7633
 AHMED v. HOLDER 7635

COUNSEL

Jesse A. Cripps, Jr., and Matthew D. Taggart, Los Angeles,
California, for the petitioner.

Nairi M. Simonian, Department of Justice, Washington, D.C.,
for the respondent.
7636 AHMED v. HOLDER
OPINION

THOMPSON, Senior Circuit Judge:

Manik Ahmed (“Ahmed”), a native and citizen of Bangla-
desh, petitions for review of a final order by the Board of
Immigration Appeals (“BIA”) affirming a ruling by the Immi-
gration Judge (“IJ”) denying him a continuance of removal
proceedings pending his appeal to the Administrative Appeals
Office (“AAO”) of the denial of his I-140 visa application.
We have jurisdiction under 8 U.S.C. § 1252. We conclude
that the IJ abused her discretion in denying the continuance.
We grant the petition for review and remand for further pro-
ceedings.

BACKGROUND

Ahmed is a forty-six year old native and citizen of Bangla-
desh. He admits he entered the United States illegally near
Los Angeles without inspection sometime during 1995.

Ahmed applied for and received labor certification from the
Department of Labor on April 16, 2001. He worked as a chef
at the Makkah Halal Tandoori Restaurant in Los Angeles. He
specialized in preparing Indian cuisine. On October 2, 2003,
Ahmed submitted an I-140 petition.

While Ahmed’s I-140 petition was pending, the govern-
ment initiated removal proceedings against him. Ahmed
appeared before the IJ on July 27, 2004; the IJ continued the
matter until February 1, 2005, pending a decision on his I-140
petition. That petition subsequently was denied by the Depart-
ment of Homeland Security (“DHS”), and Ahmed appealed
the denial to the AAO.

At the time of Ahmed’s second appearance before the IJ on
February 1, 2005, his appeal of the denial of his I-140 petition
was still pending. Ahmed requested an additional six-month
 AHMED v. HOLDER 7637
continuance, to await the AAO’s decision. The government
did not oppose Ahmed’s request. The IJ nonetheless denied
the continuance, declaring “I’m not keeping this on my calen-
dar for his appeal pending on the I-140[.]”

The BIA issued a Burbano affirmance of the IJ’s decision,
Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994), conclud-
ing that Ahmed was not deprived of a full and fair hearing.
In affirming the IJ’s ruling, the BIA specifically noted that
Ahmed could not establish prima facie eligibility for adjust-
ment of status without an approved I-140 petition. Ahmed
then filed the instant petition for review.

STANDARD OF REVIEW

Where, as here, the BIA issues a Burbano affirmance, we
review the IJ’s decision as if it were the decision of the BIA.
See, e.g., Abebe v. Gonzales, 432 F.3d 1037, 1040 (9th Cir.
2005) (en banc). We review for abuse of discretion an IJ’s
denial of a continuance. Karapetyan v. Mukasey, 543 F.3d
1118, 1121 (9th Cir. 2008). We review questions of law de
novo, and findings of fact for substantial evidence. Cui v.
Mukasey, 538 F.3d 1289, 1290 (9th Cir. 2008).

DISCUSSION

Before reaching the merits of Ahmed’s appeal, we first
must address the threshold issue of exhaustion. On appeal,
Ahmed contends the IJ abused her discretion by denying his
request for a second continuance because she failed to con-
sider individual factors warranting a continuance in his case,
and failed to make any statement of the grounds for her deci-
sion. Ahmed also contends the IJ violated his due process
rights by depriving him of a full and fair hearing. The govern-
ment argues Ahmed failed to exhaust these issues, because he
did not raise any of these arguments in his brief before the
BIA.
7638 AHMED v. HOLDER
Claims addressed on the merits by the BIA are deemed
exhausted. Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 874
(9th Cir. 2008). Here, the BIA specifically addressed the
question whether the IJ abused her discretion by denying
Ahmed’s request for a continuance. The BIA also determined
that Ahmed was not deprived of a full and fair hearing.
Ahmed’s claims thus have been sufficiently exhausted.

[1] Turning to the merits of the case, we must determine
whether the IJ abused her discretion by denying Ahmed’s
request for a continuance. Under 8 C.F.R. § 1003.29, an IJ
“may grant a motion for continuance for good cause shown.”
Karapetyan, 543 F.3d at 1129. The regulations do not define
“good cause.” The decision to grant or deny the continuance
is within “the sound discretion of the judge and will not be
overturned except on a showing of clear abuse.” Sandoval-
Luna v. Mukasey, 526 F.3d 1243, 1247 (9th Cir. 2008) (quot-
ing De la Cruz v. INS, 951 F.2d 226, 229 (9th Cir. 1991)).
The IJ’s discretion, however, is not without limits. Karape-
tyan, 543 F.3d at 1129.

Whether a denial of a continuance constitutes an abuse of
discretion must be evaluated on a case by case basis; it “can-
not be decided through the application of bright line rules.”
Cui, 538 F.3d at 1292. When reviewing an IJ’s denial of a
continuance, we consider a number of factors, including: (1)
the nature of the evidence excluded as a result of the denial
of the continuance, (2) the reasonableness of the immigrant’s
conduct, (3) the inconvenience to the court, and (4) the num-
ber of continuances previously granted. Karapetyan, 543 F.3d
at 1129; see also Baires v. INS, 856 F.2d 89, 92-93 (9th Cir.
1988).

1. Importance of Ahmed’s AAO appeal

[2] In both Cui and in Karapetyan, we held that the denial
of a continuance prevented the petitioner from exercising her
right to present evidence during removal proceedings. See,
 AHMED v. HOLDER 7639
e.g., Cui, 538 F.3d at 1292-93; Karapetyan, 543 F.3d at 1130-
31; see also 8 U.S.C. § 1252(b). In both cases, we evaluated
the importance of the evidence excluded as a result of the
denied motions. Cui, 538 F.3d at 1292-93; Karapetyan, 543
F.3d at 1130-31. Because the excluded evidence was of “vital
importance” to each petitioner’s case, we held that this “coun-
sel[ed] in favor of granting a continuance.” Cui, 538 F.3d at
1293; see also Karapetyan, 543 F.3d at 1130-31.

[3] Just as a petitioner has a statutory right to present evi-
dence on his own behalf in removal proceedings, the regula-
tions provide visa applicants with the right to appeal the
denial of an I-140 visa petition to the AAO. 8 U.S.C.
§ 1252(b); 8 C.F.R. § 204.5(n)(2). By denying Ahmed’s
request for a continuance, the IJ effectively pretermitted
Ahmed’s I-140 appeal.

[4] Had the continuance been granted, and had Ahmed’s
AAO appeal been successful, he could have filed a Form I-
485 to adjust his status to that of a permanent resident. If
Ahmed departs or is removed, he could be ineligible to reap-
ply or renter the United States for a period of ten years. 8
U.S.C. § 1182(a)(9)(B)(i)(I). Of course, there is no guarantee
that Ahmed would have been successful in his appeal. None-
theless, the outcome of the appeal was undeniably “impor-
tant,” and this weighs in favor of granting the continuance-
especially in light of the consequences of voluntary departure
or removal.

2. Ahmed’s conduct

[5] The need for a continuance did not result from any
unreasonable conduct on Ahmed’s part. Ahmed applied for
his labor certification and filed his I-140 petition before
removal proceedings were initiated against him. This distin-
guishes Ahmed from those petitioners who have applied for
labor certification only after removal proceedings were initi-
ated against them, in an attempt to delay the proceedings.
7640 AHMED v. HOLDER
Rajah v. Mukasey, 544 F.3d 449, 454 (2d Cir. 2008) (discuss-
ing Elbahja v. Keisler, 505 F.3d 125 (2d Cir. 2007) (per
curiam)).

Though we have not heretofore addressed this precise
issue, both the Second and Seventh Circuits have expressed
concern about blaming a petitioner for an administrative agen-
cy’s delay in processing an employment-based visa applica-
tion. See, e.g., Rajah, 544 F.3d at 456 (reversing denial of
continuance and remanding to the BIA for further guidance
on what constitutes “sufficient time” in light of the “delays
endemic in almost every stage of acquiring any visa”); Sub-
han v. Ashcroft, 383 F.3d 591, 593-95 (7th Cir. 2004) (con-
cluding that the immigration judge abused his discretion in
denying petitioner a third requested continuance solely
because the labor department had not yet acted on the peti-
tioner’s application, and holding that the immigration judge
must provide a “reason consistent with [8 U.S.C. § 1255(i)]”
when denying such a continuance). If anyone is to be blamed
for the delay in this case, it is the AAO, not Ahmed. The need
for a continuance cannot be attributed to any unreasonable
behavior on Ahmed’s part.

3. Inconvenience

[6] There would have been no inconvenience to the govern-
ment as a result of a second six-month continuance. Indeed,
the government did not oppose Ahmed’s request. Nor does
the record reflect any specific inconvenience to the adminis-
trative court, aside from the IJ’s announcement that she was
not “keeping this on [her] calendar for his appeal pending on
the I-140[.]”

[7] We have repeatedly warned that “a myopic insistence
upon expeditiousness” will not justify the denial of a meritori-
ous request for delay, especially where the delay impairs the
petitioner’s statutory rights. Cui, 538 F.3d at 1292 (citation
omitted). “[A]n immigrant’s right to have [his or] her case
 AHMED v. HOLDER 7641
heard should not be sacrificed because of the [immigration
judge’s] heavy caseload.” Id. at 1295.

4. Number of continuances previously granted

[8] Finally, we consider the number of continuances
already afforded to the petitioner. Here, Ahmed had received
one previous six-month continuance for the purpose of await-
ing the DHS’s decision on his I-140 petition. According to the
estimate provided by the U.S. Citizenship and Immigration
Service, the processing time for an I-140 appeal may be any-
where from nine to twenty-two months. U.S. Citizenship and
Immigration Service, How Do I Appeal the Denial of My
Petition or Application (April 2, 2009), http://www.uscis.gov/
portal/site/uscis (follow “FAQ” hyperlink; then follow “How
Do I Appeal the Denial of My Petition or Application?”
hyperlink). While an IJ cannot be expected to continue a case
indefinitely pending appeal, a second continuance would not
have been unreasonable in light of this estimate.

[9] In sum, each of the foregoing factors favors the grant
of a continuance in Ahmed’s case. Yet there is no indication
in the record that the IJ weighed any of them, or gave any
consideration at all to whether good cause existed for the con-
tinuance.

[10] The regulations do not give IJs unfettered discretion to
grant or deny a continuance. Rather, a continuance may be
granted only “for good cause shown.” 8 C.F.R. § 1003.29.
Both the language of the regulation itself and our precedent
require an IJ to make some inquiry into whether good cause
exists in a given individual case. Id.; Diaz-Covarrubias v.
Mukasey, 551 F.3d 1114, 1119 (9th Cir. 2009), (“[The grant
of] a continuance is governed by a meaningful standard: an
[immigration judge] may grant a motion for a continuance
‘for good cause shown.’ ” (quoting 8 C.F.R. § 1003.29));
Baires, 856 F.2d at 92.
7642 AHMED v. HOLDER
[11] We also have recognized that the BIA “abuses its dis-
cretion when it fails to state its reasons and show proper con-
sideration of all factors when weighing equities and denying
relief.” Arrozal v. INS, 159 F.3d 429, 432 (9th Cir. 1998)
(internal quotation marks and emphasis omitted). Similarly,
an IJ’s failure to state a reasoned basis for her decision may
constitute an abuse of discretion:

[A] decision of the BIA or IJ under review in this
court must contain a sufficient indication of the con-
tent of excluded evidence to allow us to review the
exclusion for fundamental fairness. Any other con-
clusion would be nonsensical in the face of the con-
stitutional, statutory, and regulatory regime allowing
for an asylum applicant to offer evidence and the
right of judicial review of final orders of deportation.

Ladha v. INS, 215 F.3d 889, 905 (9th Cir. 2000) (remanding
to the BIA with instructions to clarify the basis of the deci-
sion, where the IJ gave no reason for discretionary decision
to exclude evidence), overruled in part on other grounds by
Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009). Here,
the IJ abused her discretion by failing to provide any explana-
tion for her decision, and failing to take into account any of
the facts and circumstances of Ahmed’s case that were rele-
vant to the grant or denial of a continuance.

[12] Absent an explanation from the IJ, we have no choice
but to conclude that the denial of the continuance was arbi-
trary and unreasonable. Administrative efficiency alone can-
not justify the denial of a continuance where, as here, it has
the effect of pretermitting a diligent petitioner’s appeal of the
denial of his I-140 petition.

This does not end our discussion. We still must address the
BIA’s decision to affirm the IJ’s ruling on the ground that
Ahmed failed to establish prima facie eligibility for adjust-
ment of status. In Garcia, the BIA held that continuances gen-
 AHMED v. HOLDER 7643
erally should be granted to applicants who can establish prima
facie eligibility for adjustment of status. Matter of Garcia, 16
I. & N. Dec. 653, 654, 657 (BIA 1978), modified by Matter
of Velarde-Pacheco, 23 I. & N. Dec. 253 (BIA 2002).

To establish such prima facie eligibility, a petitioner must
show: (1) he is “eligible to receive an immigrant visa,” and
(2) a visa is “immediately available to the alien at the time the
application is filed.” 8 U.S.C. § 1255(i)(2)(A)-(B). Here, the
BIA concluded that “[w]ithout an approved Form I-140 . . .
a visa is not immediately available, and [Ahmed] cannot
establish prima facie eligibility for adjustment of status.” Yet
there is significant conflict among the courts of appeal as to
whether the denial of an I-140 petition in the first instance
precludes an applicant from establishing that a visa is “imme-
diately available.” Compare Varela v. Ashcroft, 368 F.3d 864,
866 (8th Cir. 2004) and Hassan v. INS, 110 F.3d 490, 492-93
(7th Cir. 1997) with Merchant v. U.S. Att’y Gen., 461 F.3d
1375, 1378 (11th Cir. 2006).

We need not decide, however, whether the denial of
Ahmed’s I-140 petition precluded him from establishing
prima facie eligibility. Ahmed is not required to show prima
facie eligibility for adjustment of status to demonstrate “good
cause” for a continuance (though doing so would certainly
help his case). Regardless of whether or not Ahmed was enti-
tled to a continuance under Garcia, the IJ clearly abused her
discretion by failing to provide a reason for denying the con-
tinuance. See, e.g., Ladha, 215 F.3d at 904-905; Arrozal, 159
F.3d at 432-33. Ahmed’s prima facie eligibility or lack
thereof does not excuse this abuse of discretion. To the extent
the BIA concluded otherwise, it erred.

[13] Accordingly, we conclude that the IJ abused her dis-
cretion in denying the requested continuance. We need not
reach Ahmed’s constitutional due process claim. We GRANT
the petition for relief, and REMAND to the BIA for further
proceedings consistent with this opinion.