Ricardo Calma v. Eric Holder, Jr., 663 F.3d 868

Background

Calma (Philippines) and Khomyshyn (Ukraine) seek permanent residence via immediate-relative petitions but are in removals due to lack of approved I-130 at the relevant times.
Calma’s first I-130 was withdrawn as a fraud, leading to 1987 deportation proceedings; after years, DHS revoked a later I-130 filed by his son in 2005, leaving Calma with no valid basis for adjustment.
The IJ continued hearings to allow Calma to pursue adjustment and to permit background checks, but the government moved to revoke the son’s I-130 petition.
DHS revoked the 2005 I-130 after finding Calma’s 1986 marriage sham; the IJ postponed, but the Board later dismissed Calma’s appeal and left the IJ’s removal order intact.
Khomyshyn sought a continuance so his wife, then a permanent resident, could file an I-130 later potentially leading to naturalization; the IJ denied it, keying to the lengthy potential wait and speculative naturalization.
The Board affirmed the IJ’s denial of continuance in Khomyshyn’s case; petitioners challenge the continuances rather than the underlying removal merits.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court has jurisdiction to review the denial of continuances in adjustment-of-status cases.	Calma and Khomyshyn argue jurisdiction exists under Kucana to review ancillary procedural rulings.	Government contends § 1252(a)(2)(B)(i) bars review of discretionary relief-related continuances when underlying relief is unreviewable.	Jurisdiction exists to review the denial of continuances when proper under the discretionary-review framework.
Whether the denial of continuances can be reviewed independently of merits of underlying relief.	Continues to seek delay to pursue relief and argues procedural decision is reviewable even if merits are unreviewable.	The underlying merits bar would ordinarily foreclose review, but precedents allow limited review of procedural steps that affect the statutory scheme.	Procedural rulings may be reviewable when they meaningfully affect the statutory process and are not merely advisory to the merits.
Standard of review for a denial of a continuance in this context.	Abuse of discretion standard should apply to the IJ’s continuance denial.	Agency discretion should be respected unless irrational or discriminatory; harmless-error considerations apply.	The court applies abuse-of-discretion review; harmless-error principles can doom a challenge if the outcome would be unchanged.
Whether harmless error defeats Calma’s petition on the continuance denial.	If the continuance would have produced a different result, the denial was prejudicial.	Harmless error applies; no prejudice since revocation stripped the status path regardless of continuance.	Harmless error defeats Calma’s challenge; denial of continuance did not prejudice establishment of relief.
Whether Khomyshyn’s continuance denial was an abuse of discretion given potential naturalization timelines.	Future naturalization could make removal proceedings premature if continuance granted.	Speculative naturalization cannot justify a lengthy continuance; IJ properly weighed timing and likelihood.	No abuse of discretion; denial was supported by the speculative and potentially lengthy wait for naturalization.

Key Cases Cited

Kucana v. Holder, 130 S. Ct. 827 (2010) (limits on jurisdiction stripping; abuse-of-discretion review of discretionary actions)
Juarez v. Holder, 599 F.3d 560 (7th Cir. 2010) (clarifies post-Kucana review of discretionary decisions; asylum context)
Leguizamo-Medina v. Gonzales, 493 F.3d 772 (7th Cir. 2007) (discusses review limitations under §1252(a)(2)(i))
Subhan v. Ashcroft, 383 F.3d 591 (7th Cir. 2004) (review of continuance in employment-based relief context; considerations of statutory constraints)
Pawlowska v. Holder, 623 F.3d 1138 (7th Cir. 2010) (limits of review where merits addressed; continuation linked to merits)
Dave v. Ashcroft, 363 F.3d 649 (7th Cir. 2004) (review of discretionary decisions to reopen; context differs when merits are implicated)
Huang v. Mukasey, 534 F.3d 618 (7th Cir. 2008) (reliance on Kucana reasoning; limits on review of discretionary determinations)
Vahora v. Holder, 626 F.3d 907 (7th Cir. 2010) (review of administrative closure and continuance under Kucana framework)
Mozdzen v. Holder, 622 F.3d 680 (7th Cir. 2010) (jurisdiction to review denial of continuance where merits might be unavailable)
Alzainati v. Holder, 568 F.3d 844 (10th Cir. 2009) (jurisdictional significance of BIA rationale; possible embedded legal questions)
Vargas v. Holder, 567 F.3d 387 (8th Cir. 2009) (broad view of jurisdiction under §1252(a)(2)(i))
Obioha v. Gonzales, 431 F.3d 400 (4th Cir. 2005) (review of remand decisions when merits are not reached)
Assaad v. Ashcroft, 378 F.3d 471 (5th Cir. 2004) (review considerations when merits review is unavailable)