Mohamed Bouras v. Eric Holder, Jr.
779 F.3d 665
| 7th Cir. | 2015Background
- Bouras, an Algerian national, received conditional permanent residency based on marriage to U.S. citizen Jennifer Schreiner but divorced before removing conditions.
- After USCIS denied his Form I-751 waiver (concluding he failed to prove the marriage was entered in good faith), Bouras was placed in removal proceedings and conceded removability.
- At the final hearing Bouras testified; Schreiner filed an affidavit and a late fax (5 days before hearing) saying she could not attend due to work; Bouras’s counsel waited until after Bouras’s testimony to request a continuance for Schreiner to testify.
- Immigration Judge denied the continuance as lacking “extenuating circumstances,” discounted the affidavits for lack of live testimony, and denied the discretionary good-faith marriage waiver; the Board affirmed both denials.
- Bouras challenged only the denial of the continuance in this court, arguing the IJ applied an improper blanket rule and that Schreiner’s live testimony would have been materially favorable.
- The Seventh Circuit denied review of the waiver on the merits (statutory discretion) but exercised jurisdiction over the continuance denial and affirmed for abuse-of-discretion reasons.
Issues
| Issue | Bouras's Argument | Government/Board's Argument | Held |
|---|---|---|---|
| Whether denial of continuance was an abuse of discretion | Request was denied based on an improper blanket rule against continuances after scheduling; Schreiner’s testimony would be materially favorable | Bouras failed to show good cause: requested continuance only at end of hearing, knew five days earlier Schreiner was unavailable, and didn’t show she couldn’t testify telephonically or with accommodations | Denial affirmed: no abuse of discretion — Bouras did not show Schreiner’s testimony would be significantly favorable nor that he made a diligent, good-faith effort to secure her live or telephonic testimony |
| Whether the Board’s supplemental reasons may be reviewed | Not contested by Bouras (challenge limited to continuance) | Board may supplement IJ’s reasoning; reviewing court considers IJ decision as supplemented by Board | Court reviews IJ decision as supplemented and finds no abuse of discretion |
| Standard for continuance requests in immigration court | Continuances should be granted where witness availability is excusable and testimony could be favorable | Must show "good cause" — i.e., significantly favorable evidence unavailable despite diligent effort | Court: standard is narrow; petitioner bears burden and failed to meet good-cause showing |
| Prejudice from denial (i.e., whether outcome likely different with live testimony) | Schreiner’s live testimony would have cured credibility doubts and been persuasive | Schreiner’s affidavit did not contradict or materially undercut IJ findings; tax/timing issues remained unexplained | Court: no prejudice shown; affidavit unlikely to have overcome documentary/credibility problems |
Key Cases Cited
- Calma v. Holder, 663 F.3d 868 (7th Cir. 2011) (standard of review and limits on collateral review of discretionary immigration decisions)
- Adame v. Holder, 762 F.3d 667 (7th Cir. 2014) (continuance standard: must show inability to procure evidence despite diligent effort)
- Barma v. Holder, 640 F.3d 749 (7th Cir. 2011) (review of IJ decision as supplemented by BIA rationale)
- Gjeci v. Gonzales, 451 F.3d 416 (7th Cir. 2006) (denial of continuance error where counsel’s sudden withdrawal prevented access to critical documents/witnesses)
- Boyanivskyy v. Gonzales, 450 F.3d 286 (7th Cir. 2006) (denial of continuance improper when hearing scheduled despite known unavailability of witnesses)
- Wang v. Holder, 759 F.3d 670 (7th Cir. 2014) (prejudice required to show continuance denial was reversible)
- Surganova v. Holder, 612 F.3d 901 (7th Cir. 2010) (context on cohabitation and evidentiary concerns in marriage-based immigration claims)
- Bark v. INS, 511 F.2d 1200 (9th Cir. 1975) (distinction between bona fide and fraudulent marriages; post-marriage conduct relevant only to intent at time of marriage)