Piyushkumar Patel v. U.S. Attorney General
21-11003
| 11th Cir. | Dec 3, 2021Background
- Patel, an Indian citizen, entered the U.S. on a visitor visa in 2003 and overstayed; DHS issued a notice to appear in 2020 charging removability and citing a 2017 Georgia aggravated-assault conviction entered by an Alford plea.
- Patel moved to continue removal proceedings pending USCIS adjudication of his pending U visa application and also applied for cancellation of removal, claiming his U.S. citizen children would suffer exceptional and extremely unusual hardship.
- The IJ denied the continuance for lack of good cause and denied cancellation, finding the aggravated-assault plea was a crime involving moral turpitude and that Patel failed to show the required hardship.
- The BIA affirmed the denial of the continuance and affirmed the denial of cancellation only on the ground that Patel failed to demonstrate the requisite hardship (it did not adopt the IJ’s conviction analysis).
- On appeal, Patel argued (1) his Alford plea did not constitute an INA “conviction,” and (2) the IJ abused its discretion by denying the continuance without properly applying the continuance factors and without finding the U visa was prima facie approvable.
- The court dismissed the challenge to the conviction for lack of jurisdiction because the BIA did not adopt the IJ’s conviction finding, and it denied review of the continuance denial on the merits, finding no abuse of discretion under the refined L-A-B-R- framework because Patel offered only a USCIS filing receipt and no evidence the U visa was likely to be granted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Patel’s Alford plea is a "conviction" under INA §1101(a)(48)(A) | Alford plea not a conviction because petitioner did not concede guilt and lacked a First Offender adjudication under Georgia law | The plea constitutes a conviction for immigration purposes | Dismissed for lack of jurisdiction because the BIA did not expressly adopt the IJ’s conviction finding |
| Whether IJ abused discretion by denying continuance pending U visa adjudication | IJ failed to apply continuance factors (Sanchez Sosa) and should have found the U visa application prima facie approvable; continuance was warranted | IJ and BIA properly found no good cause; a USCIS filing receipt alone does not show likelihood of approval | Denied—no abuse of discretion under Matter of L-A-B-R-; receipt insufficient to show likely approval |
Key Cases Cited
- Jeune v. U.S. Att’y Gen., 810 F.3d 792 (11th Cir. 2016) (BIA adoption rule limits court review of IJ reasoning)
- Haswanee v. U.S. Att’y Gen., 471 F.3d 1212 (11th Cir. 2006) (standard of review for continuance decisions)
- Lapaix v. U.S. Att’y Gen., 605 F.3d 1138 (11th Cir. 2010) (abuse-of-discretion review is whether action was arbitrary or capricious)
- Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062 (2020) (questions of law include applying a legal standard to undisputed facts)
- North Carolina v. Alford, 400 U.S. 25 (1970) (Alford plea permits sentence while maintaining innocence)
- Martinez v. U.S. Att’y Gen., 446 F.3d 1219 (11th Cir. 2006) (statutory framework for cancellation of removal)