July 16, 2019

Tenth Circuit: No Precedent for Requiring Immigration Judge to Grant Indefinite Continuance for Petitioner to Remain in Country while Awaiting Eligibility for Adjustment of Status

The Tenth Circuit Court of Appeals issued its opinion in Luevano vs. Holder, Jr. on Friday, September 30, 2011.

The Tenth Circuit affirmed the Board of Immigration Appeals’ decision. Petitioner applied for adjustment of status during his removal proceedings based on his eligibility for an immigrant visa. He also requested an indefinite continuance in anticipation of the receipt of a visa. The immigration judge determined that Petitioner was not then eligible for adjustment of status and denied the request for a continuance because the anticipated visa would not be available for several years. The Board of Immigration Appeals affirmed. Petitioner argues the immigration judge abused his discretion in denying the requested continuance.

The Court disagreed with Petitioner’s contentions. “According to the BIA, discretion to grant a continuance should generally be exercised favorably for aliens awaiting the adjudication of a pending I-130 petition. . . . An IJ should first determine an alien’s place in the adjustment process and then consider whether to grant a continuance.” “Although the agency cases permit, and may even require, an IJ to continue proceedings in order to await mere processing of a properly filed visa petition with a current priority date, there is no agency or court precedent for requiring an IJ to grant an indefinite continuance so that a petitioner may remain in this country while awaiting eligibility for adjustment of status. Escalera was not eligible for adjustment relief at the time of his removal proceedings. . . . Moreover, [Petitioner] was unlikely to be eligible within a reasonably proximate time.”

Additionally, Petitioner “claims his interrogation at the sobriety checkpoint was the result of racial profiling because his ethnicity was the only reason to suspect he was in the country illegally. He therefore claims the detention and questioning violated his constitutional rights. He requests dismissal of the proceedings against him as fruit of the poisonous tree.” The lone affidavit Petitioner submitted stated only that he believed he was not free to leave after the van was stopped. “It sets forth no information regarding the stop and presents no facts to show he was detained before he admitted to illegal entry, let alone that any detention was extended because of his race.” Therefore, the BIA did not err in concluding Petitioner had not shown a due process violation.

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