Ilic-Lee v. Mukasey

507 F.3d 1044, 2007 U.S. App. LEXIS 26692, 2007 WL 4063893
CourtCourt of Appeals for the Sixth Circuit
DecidedNovember 19, 2007
Docket06-3494, 06-4089
StatusPublished
Cited by69 cases

This text of 507 F.3d 1044 (Ilic-Lee v. Mukasey) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ilic-Lee v. Mukasey, 507 F.3d 1044, 2007 U.S. App. LEXIS 26692, 2007 WL 4063893 (6th Cir. 2007).

Opinions

McKEAGUE, J., delivered the opinion of the court, in which ROGERS, J., joined. MERRITT, J. (p. 1052-53), delivered a separate dissenting opinion.

OPINION

McKEAGUE, Circuit Judge.

Petitioner Zlata Ilic-Lee petitions this court for review of two Board of Immigration Appeals’ (“BIA”) decisions that (a) affirmed the Immigration Judge’s (“IJ”) denial of petitioner’s motion for continuance, (b) vacated the IJ’s denial of petitioner’s motion to reopen, and (c) denied petitioner’s direct motion to reopen. For the reasons that follow, we AFFIRM the decisions of the BIA and DENY the petitions for review.

I. BACKGROUND

Petitioner Zlata Ilic-Lee is a Serbian citizen. On September 26, 1998, she entered the United States pursuant to a B-2 nonimmigrant visa with permission to remain until March 25,1999.

On July 28, 2000, Ilic-Lee married a United States citizen. On October 16, 2001, her husband filed a Form 1-130 Petition for Alien Relative on her behalf. On or about December 7, 2001, Ilic-Lee filed a Form 1-485 Application to Register Permanent Residence or Adjust Status. On May 2, 2003, the Department of Homeland Security (“DHS”)1 requested that Ilic-Lee’s husband submit an amended marriage certificate to reflect the correct number of Ilic-Lee’s marriages (i.e., two rather than one). When Ilic-Lee’s husband failed to respond, DHS denied the 1-130 petition on October 3, 2003.2 That same day, DHS issued a Notice to Appear that charged Ilic-Lee with having overstayed her visa and being subject to removal. In November 2003, she filed a motion to reopen the 1-130 petition with DHS.

Ilic-Lee appeared and admitted the charges in a July 8, 2004 immigration court hearing wherein she requested adjustment of status and voluntary departure. She also requested a continuance to allow DHS to act on the motion to reopen that she filed. The IJ denied her request for a continuance, but nonetheless scheduled a future hearing for Ilic-Lee to submit all of her applications for relief.

At the January 14, 2005 hearing, the IJ denied both Ilic-Lee’s renewed request for a continuance and an adjustment of status, but granted her 30 days in which to voluntarily depart. She filed an appeal of the IJ’s denial of her motion for continuance with the BIA. She also filed a motion to reopen with the IJ. On February 16, 2005, the IJ denied her motion to reopen. Ilic-Lee appealed that decision to the BIA. On March 22, 2006, the BIA denied Ilic-Lee’s appeal of the IJ’s denial of her motion for continuance and vacated the IJ’s denial of her motion to reopen for lack of jurisdiction. She petitioned this court for review of the BIA’s decision. On or about June 21, 2006, Ilic-Lee filed a second motion to reopen, this one directly to the BIA. The BIA subsequently denied her motion to reopen on July 25, 2006. She petitioned this court for review of the BIA’s denial of her motion to reopen. We subsequently consolidated the two appeals.

[1047]*1047II. ANALYSIS

A. Motion for continuance.

We review the BIA’s affirmance of the IJ’s denial of petitioner’s motion for continuance under an abuse-of-discretion standard. Abu-Khaliel v. Gonzales, 436 F.3d 627, 634 (6th Cir.2006). An abuse of discretion occurs if “the denial ... was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination.” Id. (citing Balani v. INS, 669 F.2d 1157, 1161 (6th Cir.1982)). Because the BIA did not summarily affirm or adopt the IJ’s reasoning and provided an explanation for its decision, we review the BIA’s decision as the final agency determination. See Nikis v. Ashcroft, 126 Fed.Appx. 731, 736 (6th Cir.2005); see also Denko v. INS, 351 F.3d 717, 723 (6th Cir.2003).

An IJ “may grant a motion for continuance for good cause shown.” 8 C.F.R. § 1003.29 (2003) (emphasis added). Here, the BIA’s reason for its affirmance of the IJ’s denial of the continuance motion was that “[i]t is not good cause to request a continuance to await the results of a collateral event, such as the filing of a motion to reopen visa petition proceedings, which may or may not result in an outcome favorable to the respondent at some uncertain, indefinite date in the future.” J.A. 06-3494 at 5. The BIA noted that Ilic— Lee’s original 1-130 petition was denied in October 2003 for failure to provide evidence and a motion to reopen filed with DHS in November 2003 had been pending “without apparent action, for over 14 months.” J.A. 06-3494 at 6.

In El Harake v. Gonzales, El Harake requested a continuance from the IJ to allow time for the DHS to adjudicate his separate 1-130 petition. 210 Fed.Appx. 482, 489 (6th Cir.2006). The court found that the IJ’s denial of the motion for continuance was not irrational “because El Harake presented no evidence to show that the 1-130 petition would be successful.... ”M at 490.

In so holding, the El Harake court distinguished two recent Seventh Circuit cases that held an IJ’s denial of a continuance was an abuse of discretion. Id. The El Harake court stated

It cannot be the case that anytime an alien files an 1-485 petition or has an I-130 petition filed on his behalf, the IJ is required to grant a continuance. Such a view would conflict with the discretion that the regulations explicitly provide to the IJ. See 8 C.F.R. § 1003.29 (“The Immigration Judge may grant a motion for continuance for good cause shown.” (emphasis added)).

Id.

In Subhan v. Ashcroft, an alien requested a continuance from the IJ so that he could obtain labor certificates that would have permitted him to remain in the United States. 383 F.3d 591, 593 (7th Cir.2004). The Seventh Circuit held that the IJ’s denial of the continuance was an abuse of discretion because the IJ’s statement that petitioner “ ‘may be able to eventually acquire lawful permanent resident status by virtue of his employment,’ ” but he was “ ‘not eligible for this form of relief at this time’ ... was not a reason for denying the motion ..., but merely a statement of the obvious: that the labor departments hadn’t yet acted.” Id. The Seventh Circuit again held that an IJ’s denial of a continuance to await adjudication of 1-130 and 1-485 petitions was an abuse of discretion when the IJ’s decision was based on the failure of the alien’s attorney to submit a copy of the 1-485 to the IJ and the I-A85 had been otherwise filed. Benslimane v. Gonzales, 430 F.3d 828, 830-31 (7th Cir.2005).

The El Harake court explained “[w]hereas in

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Bluebook (online)
507 F.3d 1044, 2007 U.S. App. LEXIS 26692, 2007 WL 4063893, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ilic-lee-v-mukasey-ca6-2007.