Immigration – Removal – continuances

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U.S. Court of Appeals For the Seventh Circuit

Civil

Immigration – Removal – continuances

It was not an abuse of discretion for the ALJ to refuse a continuance in a removal proceeding, so that the alien’s wife could file a second I-130 visa petition on his behalf after the government had already denied such a petition once.

“Souley contends that the IJ abused his discretion by denying a continuance in a case like his in which a facially approvable visa petition is pending. ‘[D]iscretion should be favorably exercised,’ he urges, ‘where a prima facie approvable visa petition . . . ha[s] been submitted in the course of an ongoing removal hearing.’ Souley’s reliance on this standard is misplaced, however, because Thornton did not file the second I-130 petition before Souley moved to continue the hearing. See Mohammed v. Holder, 459 F. App’x 467, 468 (5th Cir. 2012). Thornton apparently has yet to file a second I-130 petition. It is not an abuse of discretion for an IJ to deny a continuance based on the speculative nature of an unfiled I-130 petition. See Calma v. Holder, 663 F.3d 868, 878–79 (7th Cir. 2011) (no abuse of discretion where IJ cited the ‘speculative nature’ of alien’s hope that noncitizen wife would be-come naturalized and then file and obtain alien-relative visa leading to his adjustment of status).”

Petition Denied.

14-2536 Souley v. Holder

Petition for Review of an Order of the Board of Immigration Appeals, Per Curiam.

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