785 F.3d 1147
7th Cir.2015Background
- Palma-Martinez, a Guatemalan national, became a lawful permanent resident in 2007 and pled guilty in 2011 to conspiracy to transfer a false identification document (18 U.S.C. § 1028(f)).
- DHS charged him with removability under INA § 237(a)(2)(A)(i) as having committed a crime of moral turpitude within five years of admission.
- Before the IJ he admitted the facts but requested a continuance to pursue a motion to vacate his conviction and sought a § 212(h) waiver nunc pro tunc as a stand‑alone waiver (he had not filed for adjustment of status concurrently).
- The IJ denied the continuance for lack of good cause and ruled he was ineligible for a stand‑alone § 212(h) waiver; the BIA affirmed.
- The district court post‑conviction motion was later dismissed at Palma‑Martinez’s request, mooting the continuance claim in part.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Availability of stand‑alone § 212(h) waiver to avoid removal | Palma‑Martinez: § 212(h) waiver (including nunc pro tunc) should be available to him despite being in removal proceedings | Government: § 212(h) applies only to aliens seeking visa/admission/adjustment; BIA rules out nunc pro tunc standalone waivers | Court: Ineligible—§ 212(h) requires application with visa/admission/adjustment; nunc pro tunc standalone waivers unavailable per BIA and circuit precedent |
| Denial of continuance to pursue collateral challenge to conviction | Palma‑Martinez: IJ abused discretion by denying continuance to await post‑conviction relief | Government: No good cause—the collateral attack is speculative and does not affect finality for immigration purposes; plea transcript undercuts ineffective assistance claim | Court: No abuse of discretion—continuance denied properly; issue largely moot after dismissal of motion |
Key Cases Cited
- Halim v. Holder, 755 F.3d 506 (7th Cir. 2014) (standards of review and Chevron deference to BIA interpretations)
- Papazoglou v. Holder, 725 F.3d 790 (7th Cir. 2013) (§ 212(h) waiver eligibility is a legal question reviewed de novo)
- Klementanovsky v. Gonzales, 501 F.3d 788 (7th Cir. 2007) (§ 212(h) waivers not available to aliens seeking to avoid deportation)
- Margulis v. Holder, 725 F.3d 785 (7th Cir. 2013) (remand where BIA failed to support conclusion about departure; did not rule that nunc pro tunc waivers are available)
- Rivas v. U.S. Atty. Gen., 765 F.3d 1324 (11th Cir. 2014) (affirming BIA rejection of nunc pro tunc § 212(h) waivers)
- Fayzullina v. Holder, 777 F.3d 807 (6th Cir. 2015) (following Rivas and recognizing BIA’s repudiation of nunc pro tunc waivers)
- Hassan v. I.N.S., 110 F.3d 490 (7th Cir. 1997) (standard—granting continuance is within IJ discretion)
- Qureshi v. Gonzales, 442 F.3d 985 (7th Cir. 2006) (dismissal of underlying petition can moot continuance challenge)
- Jimenez‑Guzman v. Holder, 642 F.3d 1294 (10th Cir. 2011) (denial of continuance not abuse where plea forecloses ineffective assistance claim)