647 F.3d 67
2d Cir.2011Background
- Freire, a Brazilian national, was paroled into the U.S. in 1999 as a material witness.
- In 2003 USCIS approved a visa petition and Freire filed then withdrew an adjustment application.
- In 2005 Freire was served with a Notice to Appear accusing removability as an arriving alien lacking valid entry documents.
- Freire sought a continuance or termination so he could re-file his adjustment application with USCIS; IJ denied continuance and ordered removal to Brazil.
- BIA on January 9, 2009 dismissed Freire’s appeal and denied remand, holding it lacked jurisdiction over the adjustment application.
- On remand, the BIA again denied the motion to remand or continue, prompting Freire to petition for review in this Court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BIA abused its discretion denying a continuance. | Freire argues BIA erred by denying continuance. | Freire lacks authority of agency to grant continuance due to no jurisdiction over adjustment. | Yes, BIA abused discretion; remand proper. |
| Whether the BIA properly considered adjustment pending before USCIS. | BIA must consider its impact on removal proceedings. | BIA cannot adjudicate or stay pending adjustment before USCIS. | BIA failed to provide rational record-based explanation; remand required. |
| Whether Hashmi framework should guide the continuance decision. | Hashmi factors apply to whether to grant continuance. | Hashmi not applicable or insufficiently explained. | Hashmi factors should be applied or explained on remand. |
| Whether Ni v. BIA governs the remand/continuance analysis. | Ni requires rational, non- conclusory rationale for denial. | Ni supports some record-based reasoning. | Ni governs; BIA must provide record-based justification. |
| What is the proper remedy on review. | Vacate and remand for proper consideration. | Remand would be discretionary. | Grant the petition; vacate and remand to BIA. |
Key Cases Cited
- Ni v. BIA, 520 F.3d 125 (2d Cir. 2008) (remand and rational explanation required; not mere jurisdictional recitation)
- Matter of Garcia, 16 I. & N. Dec. 653 (B.I.A. 1978) (continuance generally granted for prima facie adjustment)
- Hashmi, 24 I. & N. Dec. 785 (B.I.A. 2009) (guide discretion in continuance when adjustment is pending)
- Rajah, 25 I. & N. Dec. 127 (B.I.A. 2009) (applies Hashmi factors to employment-based adjustments)
- Clifton v. Holder, 598 F.3d 486 (8th Cir. 2010) (context of continuance and evidence evaluation)
- Scheerer v. U.S. Attorney General, 513 F.3d 1244 (11th Cir. 2008) (discretion not fully explained by jurisdictional rationale)
- Xia Fan Huang v. Holder, 591 F.3d 124 (2d Cir. 2010) (per curiam on review standard)