Anderson Ferreira v. U.S. Attorney General
714 F.3d 1240
| 11th Cir. | 2013Background
- Ferreira, Brazilian immigrant, seeks continuance of removal proceedings to await an immigrant visa tied to an approved I-140.
- NTA issued July 3, 2007; Ferreira remained in the U.S. past authorized stay, prompting removal proceedings.
- IJ granted one continuance but feared visa backlog would still require removal if no visa issued.
- USCIS approved the I-140 on September 17, 2009 with a June 2, 2008 priority date and forwarded it to DOS for visa processing.
- Before a second hearing (Feb. 9, 2010), Ferreira requested another continuance; the IJ denied, noting current visa bulletin dates.
- BIA dismissed Ferreira’s appeal and then denied reconsideration, focusing solely on visa unavailability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the BIA abuse discretion by not weighing Hashmi/Rajah factors? | Ferreira asserts BIA failed to apply Hashmi/Rajah factors. | BIA relied on visa unavailability as dispositive without weighing all factors. | Yes; BIA abused discretion by not articulating/ weighing all factors. |
| Was BIA limited to visa unavailability in denying good cause for continuance? | Ferreira contends other relevant considerations should be weighed. | BIA deemed lack of visa sufficient to deny continuance. | Yes; BIA erred by not weighing all Rajah/Hashmi factors. |
| Should the court grant relief and remand based on BIA error? | Ferreira seeks reversal and remand for proper consideration. | BIA's decision should be sustained absent error. | Grants petition, vacates BIA decision, remands for further proceedings. |
Key Cases Cited
- Matter of Hashmi, 24 I. & N. Dec. 785 (BIA 2009) (establishes factors for continuance and adjustment-related good cause)
- Matter of Rajah, 25 I. & N. Dec. 127 (BIA 2009) (articulates Rajah/Hashmi factors and requirement to weigh all relevant considerations)
- Chacku v. United States Att'y Gen., 555 F.3d 1281 (11th Cir. 2008) (continuance decisions governed by good-cause standard and regulatory framework)
- Montano Cisneros v. U.S. Att'y Gen., 514 F.3d 1224 (11th Cir. 2008) (abuse of discretion where agency fails to follow its own precedents)
- Arce v. Garcia, 434 F.3d 1254 (11th Cir. 2006) (standard for reviewing discretionary determinations in immigration cases)