Luevano v. Holder
2011 U.S. App. LEXIS 19968
| 10th Cir. | 2011Background
- Escalera fled to the United States in 2001 and his sister filed an I-130 visa petition for him, which was later approved.
- In 2006, Escalera was stopped at a Yellowstone sobriety checkpoint; he and others admitted illegal stay; an ICE agent interviewed them but did not issue an NTA or take him into custody at that time.
- Escalera later entered removal proceedings, conceded removability, and sought adjustment of status premised on the pending visa petition, requesting continuances.
- The Immigration Judge granted limited continuances but refused an indefinite continuance pending visa availability; by 2006 visa priority dates and processing times meant his visa would likely be years away.
- Escalera’s visa petition (F4 category) was approved, but visa numbers were backloged; as of the proceedings, his priority date (April 30, 2001) remained far from current issuance.
- Escalera challenged the denial of the motion for a continuance and asserted a due process violation based on the Fourth Amendment stop, raising jurisdictional and evidentiary issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the IJ/BIA abused discretion in denying a continuance | Escalera argues pending visa justifies an indefinite continuance | Backlog and lack of current visa make continuance inappropriate | Denial affirmed; no mandatory indefinite continuance required given remote visa availability |
| Whether Escalera’s Fourth Amendment challenge entitles relief | Stop/search tainted proceedings and should dismiss or suppress evidence | Fourth Amendment violation does not bar removal; proceeding not dismissed | No due process violation; dismissal not warranted |
| Whether the BIA decision on continuance is reviewable | Challenge to BIA/ IJ discretion is reviewable under Kucana | Discretionary denial falls outside statutory review unless regulation-based | Review jurisdiction exists for the continuance denial under Kucana; decision upholds denial |
| Whether Escalera was statutorily eligible for adjustment and entitled to relief | Pending visa petition entitles adjustment or mercy continuance | Visa backlog and ineligibility at filing; no current visa | Not eligible for adjustment; indefinite continuance not required; petition denied |
Key Cases Cited
- INS v. Lopez-Mendoza, 468 U.S. 1032 (U.S. 1984) (exclusionary rule does not apply in civil deportation; due process concerns may render evidence inadmissible but do not deprive jurisdiction)
- N-A-M v. Holder, 587 F.3d 1052 (10th Cir. 2009) (jurisdiction to review constitutional challenges in BIA petitions; sanctions narrow scope of review)
- Kucana v. Holder, 130 S. Ct. 827 (S. Ct. 2010) (regulatory discretionary decisions are reviewable; not barred by §1252(a)(2)(B)(ii))
- Diallo v. Gonzales, 447 F.3d 1274 (10th Cir. 2006) (review of BIA decision as final order; de novo legal questions, substantial evidence for facts)
- Chacku v. U.S. Attorney Gen., 555 F.3d 1281 (11th Cir. 2008) (antici pation of visa urgency; context for continuances when totals are remote)