Saley Souley v. Eric Holder, Jr., 779 F.3d 720

Souley, a Nigerien who overstayed a visitor visa, was ordered removed in absentia in 2008; he later married U.S. citizen Rochelle Thornton in 2009.
Thornton filed an I-130 on Souley’s behalf; DHS issued a Notice of Intent to Deny and then denied the I-130 in 2012 for failing to show the marriage was bona fide; Thornton did not appeal.
The immigration court reopened Souley’s 2008 removal proceedings and transferred venue to Chicago in 2012; Souley was released from custody on bond the same year.
At a July 2013 master calendar hearing Souley conceded removability but sought a continuance so Thornton could file a second I-130; he submitted some documents and a prepared second I-130 (unfiled).
The IJ denied the continuance, finding no good cause: the government opposed, the prior I-130 denial reduced likelihood of success, no second petition was filed, and the request appeared dilatory; the Board affirmed.
The Seventh Circuit denied Souley’s petition for review, holding the IJ did not abuse discretion and Souley showed no prejudice from the denial.

Issue	Souley’s Argument	Government’s Argument	Held
Whether IJ abused discretion by denying continuance to allow filing of second I-130	Discretion should favor continuance where a facially approvable petition is (allegedly) pending	No petition was actually filed; a continuance for an unfiled, speculative petition is not required	Denied — IJ did not abuse discretion
Whether prior denial of I-130 bars continuance	Prior denial is not dispositive; Souley urged another chance	Prior denial is highly relevant and undermines likelihood of success of a new petition	Denied — prior denial supports IJ’s finding of no good cause
Whether IJ improperly relied on the earlier I-130 denial	Reliance was improper and premature	Prior adjudications and evidence of non-bona fide marriage are legitimate factors	Denied — reliance was appropriate when assessing prospects of success
Whether denial violated due process (prejudice)	IJ acted prematurely and prevented submission of evidence later	Souley was not prejudiced: had time to gather evidence; offered no specific missing evidence	Denied — no showing of prejudice

Nunez-Moron v. Holder, 702 F.3d 353 (7th Cir.) (discusses I-130 approval as step toward adjustment of status)
Calma v. Holder, 663 F.3d 868 (7th Cir.) (IJ may deny continuance based on speculative future events)
Afzal v. Holder, 559 F.3d 677 (7th Cir.) (IJ entitled to rely on low prospect of success when prior relief was revoked)
Pede v. Gonzales, 442 F.3d 570 (7th Cir.) (no abuse in denying continuance where application was ultimately hopeless)
Morgan v. Gonzales, 445 F.3d 549 (2d Cir.) (no right to adjudication of second I-130 after finding marriage lacked bona fides)
Hasanaj v. Ashcroft, 385 F.3d 780 (7th Cir.) (petitioner must show prejudice to establish denial of due process)
Wigglesworth v. INS, 319 F.3d 951 (7th Cir.) (same: prejudice required to show due process violation)