Simon v. Holder
654 F.3d 440
3rd Cir.2011Background
- Simon, a Guyana native, entered the U.S. in 1994 on a tourist visa and remained past his authorized stay.
- He held approved I-130 and I-140 petitions; he sought adjustment of status pending visa availability.
- Simon appeared in Newark Immigration Court beginning February 16, 2006, with multiple continuances granted to obtain counsel and prepare.
- On February 7, 2008, the IJ denied further continuances and ordered removal due to lack of visa availability.
- Simon appealed to the BIA, which dismissed in 2009, noting future visa availability was speculative and did not address Hashmi.
- Simon sought reconsideration in 2009-2010, arguing Hashmi-required analysis was not applied; the BIA denied reconsideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BIA abused discretion by not applying Hashmi-Rajah factors | Simon | Holder/State | BIA abused discretion; Hashmi-Rajah must be applied |
| Whether visa availability can be weighed with other factors in continuance | Simon | Holder | Visa availability is one factor among Hashmi-Rajah; not sole determinant |
| Remand appropriate to reconsider continuance under Hashmi and Rajah | Simon | Holder | Remand to BIA for consistent application of Hashmi-Rajah |
Key Cases Cited
- In re Hashmi, 24 I. & N. Dec. 785 (BIA 2009) (sets five criteria for continuance analysis with presumptive role for visa petition)
- In re Rajah, 25 I. & N. Dec. 127 (BIA 2009) (extends Hashmi factors to I-140 cases and cautions against completion goals)
- Khan v. Att'y Gen., 448 F.3d 226 (3d Cir. 2006) (precedes Hashmi; factors to consider with caution about departure from precedent)
- Johnson v. Ashcroft, 286 F.3d 696 (3d Cir. 2002) (BIA must follow its precedents; arbitrary departures require principled reasons)
- Eustace Simon v. Holder, 654 F.3d 440 (3d Cir. 2011) (this decision applying Hashmi-Rajah to grant relief and remand)