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Immigration — continuances

By: WISCONSIN LAW JOURNAL STAFF//July 28, 2014//

Immigration — continuances

By: WISCONSIN LAW JOURNAL STAFF//July 28, 2014//

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U.S. Court of Appeals for the 7th Circuit

Civil

Immigration — continuances

Where the IJ denied a continuance to permit an alien to show a former marriage was not a sham, the denial was an abuse of discretion.

“Had the IJ taken the Board’s advice and moved through the Hashmi checklist, the ultimate decision on the continuance would have been better informed. In particular, the Board’s list effectively instructs the IJs to take a peek at the merits of the pending application before ruling. In this case, in assessing Yang’s likelihood of success (the first factor) the judge should have looked at Yang and Li’s response to USCIS’s sham-marriage allegation. See id. Had he done so, he would have found significant and credible evidence of the legitimacy of Yang’s second marriage. He would have seen, for example, the crucial role Yang played and plays as a stepfather to Prestin’s daughter, as explained by his stepdaughter in sworn statements, and he would have found significant third-party confirmation that the marriage was real. Other aspects of Yang’s background, such as the role he plays in his family with Li, would also have illuminated the decision. See id.”

“Since neither of the reasons the Board relied on for the denial of the continuance withstands scrutiny, we are compelled to conclude that the decision stands unsupported by any reason. It thus represents an abuse of discretion, and Yang is entitled to one more chance to pursue this line of relief.” Petition Granted.

13-3849 Yang v. Holder

On Petition for Review of an Order of the Board of Immigration Appeals, Wood, J.

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