793 F.3d 797
7th Cir.2015Background
- Parashu Giri, a Nepalese national, obtained conditional permanent resident status in 2001 based on marriage to U.S. citizen Tammy Giri; USCIS later terminated that status after concluding the marriage was to evade immigration laws.
- DHS served a notice to appear in 2010 and removal proceedings followed. An immigration court scheduled a merits hearing in August 2012 after finding Parashu had conceded removability and set deadlines for fingerprinting (60 days before) and filing applications (45 days before).
- Parashu’s counsel had represented him since 2010 but failed to formally file the entry-of-appearance and did not timely submit the I-751 petition or supporting evidence; counsel sought a continuance on the day of the merits hearing citing late receipt of voluminous evidence and difficulty obtaining USCIS fingerprint appointments.
- The IJ denied the continuance, finding Parashu had ample time, was not diligent, and offered no adequate justification (no evidence of spousal abuse or other good cause). The IJ then ordered removal to Nepal.
- The BIA affirmed the IJ’s decision, and Parashu petitioned for review in the Seventh Circuit, raising (1) abuse of discretion in denial of continuance (including due-process claim) and (2) error in finding he conceded removability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether IJ abused discretion by denying continuance | Giri: requested continuance due to lack of fingerprinting, inability to timely file voluminous supporting docs, and pro se status until hearing; alleged spousal control withheld documents (raised later) | Government/IJ: Giri had >1.5 years and explicit deadlines; counsel was tardy, offered no timely good-cause proof, and could have sought subpoenas; denial within IJ discretion | Denial was not an abuse of discretion; IJ gave rational reasons, no evidence of good cause, and proceedings met due-process standards |
| Whether IJ erred in finding Giri conceded removability and ordering removal | Giri: denied conceding removability and argued IJ failed to consider his petition for relief; contested removal-country designation | Government/IJ: Giri admitted key facts in the NTA (conditional status and termination); petition and exhibits were not before IJ until after hearing; IJ properly designated Nepal | IJ correctly found removability based on Giri’s admissions and properly ordered removal to Nepal; petition for relief was not before IJ |
Key Cases Cited
- Palma-Martinez v. Lynch, 785 F.3d 1147 (7th Cir. 2015) (BIA adoption and supplementation of IJ decision reviewed together)
- Calma v. Holder, 663 F.3d 868 (7th Cir. 2011) (standard for reviewing denial of continuance)
- Umezurike v. Holder, 610 F.3d 997 (7th Cir. 2010) (IJ discretion to refuse additional time to file)
- Reyes-Cornejo v. Holder, 734 F.3d 636 (7th Cir. 2013) (immigration court subpoena power acknowledged)
- Juarez v. Holder, 599 F.3d 560 (7th Cir. 2010) (due process in immigration proceedings tied to statutory/regulatory compliance and reasonable time to present evidence)
- Selimi v. I.N.S., 312 F.3d 854 (7th Cir. 2002) (admissions in a response withdraw issues from controversy)
- Qureshi v. Gonzales, 442 F.3d 985 (7th Cir. 2006) (admissions effect on waiver of objections)
- Jama v. Immigration & Customs Enforcement, 543 U.S. 335 (2005) (rules on country-of-removal designation)