In the
United States Court of Appeals
For the Seventh Circuit
No. 10‐2795
RICARDO YONZON CALMA,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney
General of the United States,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A026 702 335
ARGUED JUNE 14, 2011—DECIDED DECEMBER 5, 2011*
No. 10‐3973
OLEH KHOMYSHYN,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney
General of the United States,
Respondent.
*
This opinion is released in typescript; a printed
version will follow.
2 Nos. 10‐2795 & 10‐3973
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A088 187 224
SUBMITTED JUNE 14, 2011**—DECIDED DECEMBER 5, 2011***
Before POSNER, ROVNER, and WOOD, Circuit Judges.
WOOD, Circuit Judge. The petitioners in these consolidated
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 resident
through relatives who are legitimately in the United States.
When the time came for an immigration judge to issue a
decision, each was found ineligible for permanent 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 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.
**
This court granted Khomyshyn’s unopposed
motion to waive oral argument. The case is therefore
submitted on the briefs.
***
This opinion is released in typescript; a printed
version will follow.
Nos. 10‐2795 & 10‐3973 3
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 approved
Roderick’s petition in July of that year, and in September
Calma moved to restore his earlier deportation 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 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.
4 Nos. 10‐2795 & 10‐3973
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 submitted,
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 postponement until October 24, 2008.
Unfortunately, when Calma returned on that date, the
Board still had not resolved his appeal from the revocation
of the I‐130 petition. Calma asked for yet another
continuance, but this time the IJ’s patience was at an end.
Commenting 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 permanent
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.
Nos. 10‐2795 & 10‐3973 5
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
immigration judge 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 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 continuance 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 recognized 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,”
particularly 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 he could
6 Nos. 10‐2795 & 10‐3973
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 jurisdiction 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
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 proceedings 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 reopen – rests firmly within
the Attorney General’s discretion.
The BIA must reach a “final” decision on the overall
removal proceeding before a petition may be filed in this
Nos. 10‐2795 & 10‐3973 7
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 petitions do not attack the merits of
Board’s decisions not to adjust their status. If they did, we
would be compelled to dismiss both petitions for review for
want of jurisdiction. Instead, Calma and Khomyshyn are
asserting 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 government has
argued that Kucana holds only that our jurisdiction 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
8 Nos. 10‐2795 & 10‐3973
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 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 issue. 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 9
The best starting point for evaluating these arguments is
with the decision in Leguizamo‐Medina. In that case, decided
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 suggesting 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:
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
10 Nos. 10‐2795 & 10‐3973
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 certificate 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 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 continuance – 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
Nos. 10‐2795 & 10‐3973 11
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, cognizable 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
that we have reproduced above. It is true, as the government
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
acknowledged an inability to review analogous cases
12 Nos. 10‐2795 & 10‐3973
without concluding that the absence of jurisdiction over the
merits 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. 2009) (finding jurisdictional significance, for
§ 1252(a)(2)(B)(i) purposes, in the ground on which the BIA
bases its decision, reserving possibility of an embedded 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 underlying
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 foreclosed 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 underlying 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 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
Nos. 10‐2795 & 10‐3973 13
jurisdiction 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 jurisdiction 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, No. 10‐
1618, 2011 WL 3773457 (7th Cir. Aug. 24, 2011). Even though
we would not have been able to review the petitioners’
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 continuances
under the deferential abuse of discretion standard.” 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 circumstances
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 circumstances 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.]
14 Nos. 10‐2795 & 10‐3973
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 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 permits 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, 253 F.3d at 800 (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
Nos. 10‐2795 & 10‐3973 15
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 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 cancellation. 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.
III
Unfortunately for both petitioners, our discussion here will
be brief. The standard of review, as we have already noted,
16 Nos. 10‐2795 & 10‐3973
is one that gives great deference to the responsible IJ. An IJ
has the discretion to grant a continuance 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 established 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
addition, the principle of harmless error applies to
administrative 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. 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
Nos. 10‐2795 & 10‐3973 17
for citizenship, but the record does not support him. The IJ
explicitly acknowledged this possibility, but then refused, in
the absence of any evidence that naturalization was
necessarily forthcoming, 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 DENY both Calma’s petition for
review (No. 10‐2795) and Khomyshyn’s petition for review
(No. 10‐3973).