Martin v. INS

March 7, 1996 [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 95-2010

DENNIS ALEXANDER MARTIN,

Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS

Before

Torruella, Chief Judge,

Cyr and Stahl, Circuit Judges.

Linda A. Cristello on brief for appellant.

Per Curiam. Petitioner Dennis Martin is a native

and citizen of Jamaica who legally entered this country as an

immigrant in June 1988. He was convicted in April 1992 in a

Massachusetts Superior Court of possession of cocaine with

intent to distribute. The INS then issued an Order to Show

Cause in July 1992 based on his conviction of an aggravated

felony.

An immigration judge (IJ) held a deportation

hearing in April 1994 at which petitioner was represented by

an attorney. Deportability was conceded and Jamaica

designated as the country for deportation purposes. Counsel

then asked for a continuance of 15 months so that petitioner

could accumulate the seven years required for an application

for discretionary relief under 212(c), 8 U.S.C.

1182(c).1 Petitioner would reach the seven-year mark in
1

June 1995.

Although acknowledging the presence of hardship --

petitioner has a stammer which he alleges cannot be treated

in Jamaica and his mother who lives here is blind -- the IJ

1Section 212(c) provides in relevant part:
1

Aliens lawfully admitted for permanent
resident [sic] who temporarily proceeded
abroad voluntarily and not under an order
of deportation, and who are returning to
a lawful unrelinquished domicile of seven
consecutive years, may be admitted in the
discretion of the Attorney General. . . .

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determined that there was no cause to grant a continuance.

The Board of Immigration Appeals (BIA) summarily dismissed

the appeal when counsel failed to file a brief, and this

petition for review ensued.

Petitioner contends that the IJ should have granted

a continuance so that he could apply for a 212(c)

discretionary waiver. An IJ may grant a motion for a

continuance "for good cause shown." 8 C.F.R. 3.29. We

review the denial of such a motion for abuse of discretion.

See Baires v. INS, 856 F.2d 89, 91 (9th Cir. 1988). In

support of his position on review, petitioner first argues

that as a statute of repose and forgiveness, 212(c) is

liberally construed in favor of aliens. He then analogizes

his situation to a case in which the BIA held that a motion

to reopen should be granted where an alien has filed an

application for adjustment of status contemporaneously with a

visa petition. See Matter of Garcia, 16 I. & N. Dec. 653

(BIA 1978).

In Garcia, an IJ had ordered the deportation of an

alien as an overstay. The alien then moved to reopen the

proceedings so that he could apply for an adjustment of

status pursuant to 245, 8 U.S.C. 1255. Ordinarily, the

INS required a prima facie showing that, in addition to the

filing of an application for an adjustment, (1) the alien was

eligible to receive an immigrant visa and was admissible to

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the U.S. for permanent residence, and (2) an immigrant visa

was immediately available to him or her at the time the

application was filed. In the case of an adjustment

application simultaneously filed with a visa petition, the

INS would deny the application because the visa, by

definition, would not be immediately available.

However, an amendment to the INA changed the provision

for dating the adjustment application. As a result, the INS

amended the regulations specifically to permit the

simultaneous filing of an application for adjustment of

status and a visa petition. In Garcia, the BIA recognized

that to continue the practice of requiring immediately-

available visas would nullify the new simultaneous filing

provision. To give proper effect to this provision, then,

the BIA decided that it would generally reopen deportation

proceedings unless (1) ineligibility was apparent on the

record, or (2) the adjustment application would be denied on

statutory grounds or as a matter of discretion, even were the

visa petition approved. In this way, the adjustment

application would be retained until the INS ruled on the visa

petition.

We find Garcia inapposite. First, to be entitled

to reopening, the alien's visa petition must be prima facie

approvable. Petitioner's attempt to make this showing in

regard to his application for a 212(c) waiver fails.

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According to him, the IJ opined that the hardship petitioner

alleged would have been the basis for a "successful" waiver

application. However, the record does not reveal that the IJ

made such a statement. Rather, she stated that a continuance

of 15 months to enable petitioner to apply for 212(c)

relief was not a good reason to grant petitioner's motion,

"understanding that there are -- [that] this may be a case

where there are -- where there is hardship. Unfortunately,

the [petitioner] has been convicted of an aggravated felony

as he has admitted in his pleadings." At most, then, the IJ

viewed the case as possibly involving hardship. Even if she

definitely had determined the presence of hardship, however,

she still would need to balance the humane factors favoring

relief against the adverse factors favoring deportation. See

Matter of Marin, 16 I. & N. Dec. 581 (BIA 1978); Gouveia v.

INS, 980 F.2d 814, 816 (1st Cir. 1992).

Second, as the IJ pointed out, petitioner is an

aggravated felon. Indeed, the last sentence of 212(c)

provides that an aggravated felon who has served at least

five years in prison is ineligible to apply for discretionary

relief. Unlike the amendment to 245, then, the changes to

212(c) in regard to aggravated felons indicate a

restrictive approach. Further, even where, as here, an

aggravated felon is entitled to make a 212(c) application,

"it is incumbent upon [such] a petitioner not only to

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demonstrate that favorable factors preponderate but also to

present 'unusual or outstanding equities' as a prerequisite

for a waiver of excludability." Gouveia, 980 F.2d at 816.

Without deciding whether such equities exist in

this case, we cannot say that the denial of a continuance,

based in part on petitioner's status as an aggravated felon,

was in derogation of the intent of 212(c). Here, the IJ

refused a request to continue the proceedings for over a year

so that Martin could file an application for discretionary

relief. Given the length of time involved and the intent of

Congress to deport aggravated felons with relative dispatch

and to deny them, in some circumstances, opportunities for

relief from deportation, we conclude that the IJ did not

abuse her discretion in denying the motion for a continuance.

The petition for review is summarily dismissed.

See Local Rule 27.1. The motion for a stay is denied as

moot.1
1

1The INS's denial of petitioner's motion for a stay may be
1
challenged in a habeas corpus proceeding. See, e.g., Dhangu

v. INS, 812 F.2d 455, 459 (9th Cir. 1987).

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