*1 incar- at Group, 462 Capital Petitioner, ILIC-LEE, remedies, Zlata authorized among the ceration 114 S.Ct. U.S. Bagwell, see v. paradigmatic “[t]he (observing MUKASEY, Attorney B. Michael in- ... contempt sanction coercive, civil General, Respondent. indefinitely a contemnor confining volves com- an affirmative 06-3494, complies 06-4089. he Nos. until amply mand”). in this case The record Appeals, States Court United determination court’s the district supports Circuit. Sixth imprison- of Conces’s nothing short compliance his secure would ment 25, 2007. Submitted: Oct. through- refused orders, he where court’s 19, 2007. and Filed: Nov. Decided partic- proceedings to court the district out comply with discovery or ipate where, in the face orders, even
court’s incarceration, he continued imminent objec- arguments and frivolous
interpose indicating any sort rather than discovery responses provide
willingness court’s clear with the accordance circuits Our sister
repeated instructions.14 of incarceration affirmed orders circum- comparable contempt under
civil Teeple, v.
stances, see, States e.g., United Cir.2002); (8th F.3d 303 Brumfield, 188
States the dis-
Cir.1999), affirm likewise and we in this case. court’s order
trict
V. CONCLUSION above, we forth the reasons set
For the district respects in all
AFFIRM holding 2007 order February
court’s Conces Charles
Defendant/Appellant ordering his incarcera- contempt
civil compliance with upon his conditioned
tion directing him to orders prior court’s post-judg-
respond to the Government’s discovery requests.
ment proper imprisoned without a tion he ordered district court Because "probable showing his as a sanction for Fourth Amendment Conces’s incarceration penalty for contempt, not as a civil cause.” violation, reject conten- Conces’s criminal
ON BRIEF: Hyman, Marshal E. Rus- sell R. Abrutyn, Hyman Marshal E. & Associates, Troy, Michigan, for Petitioner. Alison Igoe, Marie Depart- States Justice, ment of D.C., Washington, for Re- spondent. day, DHS same 2003.2 That ROGERS, on October MERRITT, Before: charged Appear a Notice Judges.
McKEAGUE, issued Circuit overstayed her visa having opinion J., McKEAGUE, delivered In Novem- subject to removal. being J., ROGERS, joined. court, in which *3 of the reopen to 2003, a filed motion she ber 1052-53), a delivered MERRITT, (p. J. with DHS. petition 1-130 dissenting opinion. separate admitted appeared Ilic-Lee OPINION 8, immigration July in a charges Judge. McKEAGUE, Circuit requested ad- she hearing wherein court this petitions Ilic-Lee Zlata Petitioner voluntary depar- of status justment Immigra- Board of two review of court for to continuance a requested She also ture. (a) (“BIA”) decisions Appeals’ tion reopen to the motion to act on DHS allow (“IJ”) Judge’s Immigration affirmed request her denied filed. The IJ she continu- for motion petitioner’s of denial continuance, sched- nonetheless but a for petition- denial of (b) IJ’s ance, vacated to sub- Ilic-Lee hearing a future for uled (c) denied reopen, to er’s motion for relief. applications all of her mit reopen. For to direct motion tioner’s the deci- follow, we AFFIRM reasons the IJ 14, January hearing, theAt petitions DENY BIA and of sions request renewed Ilic-Lee’s both denied for review. status, adjustment an of a continuance to volun- days in which granted her BACKGROUND I. of the appeal depart. She filed tarily is a Serbian Zlata Ilic-Lee Petitioner for continuance her motion denial IJ’s 1998, 26, en- she September On citizen. to a motion filed She also the BIA. to B-2 a pursuant States the United tered 2005, 16, February IJ. On with the reopen re- permission to visa nonimmigrant Ilic- reopen. to her motion denied the IJ 25,1999. March main until the BIA. On to that decision appealed Lee 2000, married 28, July On Ilic-Lee’s 22, 2006, denied the BIA March 16, October On citizen. States her motion of the IJ’s denial appeal 1-130 Peti- filed Form 2001, her husband the IJ’s denial vacated continuance and behalf. On on her Relative Alien tion for jurisdic- lack of reopen for her to 2001, 7, Ilic-Lee filed December or about for review court petitioned this She tion. Register Per- to Application Form 1-485 June On about BIA’s decision. of the On Adjust Status. Residence manent to 2006, a second motion 21, Ilic-Lee filed 2003, of Homeland Department May the BIA. directly to this reopen, one Ilic- (“DHS”)1 requested Security her motion denied subsequently an amended mar- Lee’s husband petitioned She July reopen on correct num- reflect riage certificate BIA’s denial of the for review court this (i.e., two rather marriages ber Ilic-Lee’s subsequently reopen. We motion to one). husband failed Ilic-Lee’s When than appeals. two consolidated petition 1-130 denied DHS respond, denied, petition 1-130 Because Immigration and Natu- 1. In March I- Ilic-Lee’s shortly its func- denied thereafter was dissolved DHS Service ralization purposes For to DHS. petition. were transferred relevant opinion, will refer of this the name regardless agency as DHS taken. the action was when II. ANALYSIS Harake presented no evidence to show that the would be success- A. Motion for continuance. ful.... ”M at 490. We review BIA’s affirmance holding, so the El Harake court dis- IJ’s denial of tinguished two recent Seventh Circuit continuance under an abuse-of-discretion cases that held an IJ’s denial of a continu- standard. Abu-Khaliel v. ance was an abuse of discretion. Id. The Cir.2006). An abuse El Harake court stated discretion if “the occurs denial ... was made without a It cannot be the explanation, inex case anytime plicably departed from established alien policies, files or has an I- *4 or impermissible rested on an basis such 130 behalf, filed on his the IJ is as invidious discrimination.” Id. (citing required to grant a continuance. Such a INS, (6th 1157, Balani v. 669 F.2d 1161 view would conflict with the discretion Cir.1982)). Because the BIA did sum not that regulations explicitly provide to marily affirm adopt the IJ’s reasoning (“The IJ. See 8 C.F.R. 1003.29 explanation an for its deci Immigration Judge may grant a motion sion, we review the BIA’s decision as the for good continuance for cause shown.” agency final determination. See Nikis v. added)). (emphasis (6th Ashcroft, 731, 126 Fed.Appx. 736 Cir. Id. 2005); INS, see also Denko v. 351 F.3d In Ashcroft, Subhan v. request alien (6th 717, Cir.2003). 723 ed a continuance from the IJ so that he An “may grant IJ a motion for could obtain labor certificates that would good continuance for cause 8 shown.” permitted him to remain in the Unit (2003) added). (emphasis 1003.29 (7th ed 591, States. 383 F.3d Cir. Here, the BIA’s reason for its affirmance 2004). The Seventh Circuit held that the of the IJ’s denial of the continuance motion IJ’s denial of the was an continuance abuse was that good “[i]t not cause request of discretion because the IJ’s statement a continuance to await the of a results “ that ‘may be eventually able to event, collateral such as the filing of a acquire permanent lawful resident status motion to reopen visa petition proceedings, ” by virtue of employment,’ his but he was which may may not result in out “ ‘not eligible for this form of relief at this come favorable to the respondent at some time’ ... was not a reason denying for uncertain, indefinite date in the future.” ..., merely a statement of the J.A. 06-3494 at 5. The BIA noted Ilic— that obvious: departments that labor hadn’t Lee’s original 1-130 was denied in yet acted.” Id. The Seventh Circuit again October 2003 for failure provide evi held that an IJ’s denial of a continuance to dence and a motion to reopen filed with adjudication await of 1-130 peti and 1-485 in DHS November 2003 had been pending anwas abuse of discretion when the action, “without apparent for over IJ’s decision was based on the failure of months.” J.A. attorney to copy alien’s of the Gonzales, El Harake v. El Harake 1-485 to the IJ and the I-A85 had been requested a continuance from the IJ to otherwise Gonzales, filed. v. Benslimane allow time for the adjudicate DHS to his (7th Cir.2005). separate 1-130 petition. 210 Fed.Appx. (6th Cir.2006). The El The court Harake court explained found that the IJ’s denial of Subhan, the motion “[w]hereas con gave the IJ no rea- tinuance was not irrational El “because continuance, son for denying the and in record, at administrative in the arbitrary rea-
Benslimane,
gave
IJ
that Ilic-Lee
hearing,
was
the time
reason:
gave
IJ
here, the
son,
relief,
applica-
no
any
eligible for
was not
any evidence
provide
did
El Harake
filed
the 1-130
pending,
relief was
tion for
likelihood
he
suggested
denied,
I-
been
behalf had
on her
his 1-485
adjudicating
of success
denied.
had been
485 also
n.
at 490
Harake,
Fed.Appx.
El
tion.”
distinguishable
is also
present case
this court
by
recent decision
from a
El Harake.
analogous
case is
This
was
a continuance
an IJ’s denial
found
contained
record
Here, the administrative
See Badwan
of discretion.
an abuse
the mo-
denying
following reasons
Cir.2007).
(6th
F.3d 566
tion:
a continuance
First,
motion for
Badwan’s
while
evidence, establishing
government
unopposed
[of]
the absence
Cor
opposed. See
motion was
timely file a
Ilic-Lee’s
assertions, the failure
06-3917,
WL
Gonzales, No.
and,
dova v.
given
continuance
2007)
August
Cir.
at *6
already
has
respondent
fact
distin
Badwan
(finding
(unpublished)
mat-
in this
months
seven
granted
been
affir-
the BIA’s
holding
guishable
time
*5
during which
a continuance
as
ter
was
continuance
of a
of IJ’s denial
mance
appropri-
[the]
submitted
could
she
discretion). Second, Bad-
an abuse of
respondent
documentation,
that
ate
continuance;
his first
requesting
wan
to
timely manner
act in a
failed to
has
gather
time to
had considerable
there
and that
the continuance
request
Third, the
id.
See
the relevant evidence.3
establish
nothing
record to
is
Badwan
to believe
little reason
IJ had
this
exercise
merits the
respondent
adjustment
to obtain
not be able
would
anything
there
nor
discretion
Court’s
case
in Ilie-Lee’s
the IJ
whereas
of status
for the
a basis
to establish
record
denied
already been
knew
she
continuance.
evidence
no
and she
once
dissent, we
alone
let
pending
at 31. Unlike
was even
application
J.A. 06-4089
passage
suggest
despite
to
the record
likely
approved
to
evidence
be
find no
time
documentary evi-
amount
between
aof
considerable
filed new
that Ilic-Lee
evidence, the subse
request
DHS’s
for a continu-
her
support
request
to
dence
hearing, and
denial, the first
1-130
quent
not submit
did
she
example,
For
ance.
id.
hearing.4 See
the second
she
1-130
reopen
motion
here,
did she
DHS nor
it was
with
filed
claimed she
the circumstances
Under
BIA to
for the
discretion
of the second
abuse of
copy
a
not an
motion
petitioner’s
the same
the IJ’s denial
filed on
affirm
husband
she claimed her
fact,
for continuance.5
only
the IJ’s decision.
day as
are
cited
dissent
the cases
because
first
Although
denied her
continuance
IJ
3.
8, 2004,
distinguishable, as discussed
July
the IJ nonetheless
on
motion
infra.
by allow-
continuance
dea
granted her
facto
applications for
all of
ing
ignore
her to submit
seems
that the dissent
5.We
note
on Janu-
hearing to be held
Rather,
the next
at
relief
here.
de novo
is not
review
that our
14,
January
hear-
14,
2005
theAt
ary
2005.
ruling un-
BIA's
to affirm the
are bound
request
denied
again
ing,
IJ
explana-
without a rational
made
it "was
less
a continuance.
tion,
departed from established
inexplicably
impermissible basis
rested on
policies, or
suggestion, our
Contrary
the dissent's
Abu-
discrimination."
as invidious
such
a conflict
today
not create
does
decision
omitted).
(citation
Khaliel,
F.3d at
circuits
of other
precedent or that
court's
this
reopen
B. Motion to
with IJ.
explanation,
inexplicably departed
from
policies,
established
or rested on an
We
de
review
novo the BIA’s
impermissible basis such as invidious dis-
Denko,
decisions
questions
on
of law. See
crimination against
particular
race or
726;
at
see
Patel Ashcroft,
also
(alterations
group.”
(cita-
Id.
original)
(6th
Cir.2005).
401 F.3d
“An
omitted).
quotation
tions and
marks
“The
Immigration Judge may upon his or her
Supreme Court has made clear that re-
time,
own
at any
upon
motion of
opening is discretionary with
alien,
the BIA
the Service or
reopen
or recon
the BIA retains broad
sider
discretion to
case which he or she
made
has
grant
decision,
deny
such
jurisdiction
motions.” Alizoti v.
unless
is vested
Cir.2007)
with the
Immigration
Board
Appeals.”
1003.23(b)(1) (2003)
(citing
8 C.F.R.
I.N.S. v.
(emphasis
Doherty,
314, 323,
502 U.S.
added). Here,
the BIA found
(1992)).
that the
S.Ct.
IJ
the of an IJ’s decision on the merits ure to introduce previously unavailable, in which she jurisdiction. lacked Accord- evidence, material and a determination ingly, the BIA did not err when it found that even if requirements these were satis- jurisdiction the IJ lacked to render a fied, movant the would not be entitled to decision on motion to reopen. discretionary the grant of relief which he sought.” Doherty, 502 112 U.S. reopen C. Motion to with BIA. (citation omitted). S.Ct. 719 1003.2(a) 8 C.F.R. provides that Here, the BIA denied the motion to grant “[t]he decision to or deny a motion reopen because Ilic-Lee had reopen ... not estab is within the discretion of ” lished that she prima the eligible Board.... Accordingly, we review facie adjustment (1) the BIA’s of status denial of a inasmuch as: reopen motion to the under petition second 1-130 abuse-of-discretion not ap standard. been (2) proved; Haddad v. 437 reopen 517 the motion to the deni (6th Cir.2006). al requires “This standard us the first 1-130 remained to decide (3) the whether denial of pending; mo petitioner [the] the submitted tion to reopen ... was made without a “minimal and insufficient” documentation documents submit petitioner should mar- tides of her bona
to establish marriage was at 7. which establish riage.6 J.A. not en- good faith and into entered eligibility showing of “A prima facie purpose procuring into for tered reopen.” in motions required relief is The immigrant. entry as an the alien’s 451-52; also 8 Alizoti, see may petitioner of documents types 1003.2(c). evi “Prima facie include, limited to: are not BIA, is dence, according likelihood ‘reveals a reasonable (1) showing joint own- Documentation relief statutory requirements ership property; ” Matter (quoting Id. at 452 been satisfied.’ (2) joint tenancy of showing Lease (BIA S-V-, N. Dec. I. & residence; common 2000)). pend is if an 1-130 Even (3) comming- showing Documentation may grant a that it found the BIA has ing, resources; of financial ling if: reopen motion child(ren) eertificate(s) (4) Birth (2) filed; (1)the timely motion beneficiary; by the born to numerically barred motion is not (3) is not barred the motion regulation; (5) having parties Affidavits third Sham, 21 I. & N. Dec. by Matter of knowledge of the bona fides (BIA 1996), procedural any other (Such persons relationship marital (4) clear presents grounds; testify before may required to be indicating a convincing evidence as to the informa- immigration officer respondent’s strong likelihood Affida- in the affidavit. tion contained (5) fide; the Ser- bona affirmed sworn to or must be vits oppose either does vice knowledge personal who have people solely Matter on opposition or bases its Each affi- relationship. of marital (BIA Dec. I. & N. Arthur [20 full name and contain davit must 1992)]. address, of birth of place date and Velarde-Pacheco, I. & N. Matter of and his or making the affidavit person 2002). (BIA BIA ex- The Dec. any. if spouses, relationship to today does not decision that “our plained complete must affidavit contain *7 reopen pro- to Immigration Judges require how explaining and details information of adjudication ceedings pending knowl- or her person acquired the his respon- every case which visa Affidavits marriage. the of edge the aforementioned all five of dent meets by if supported, possible, should be added). 8 (emphasis factors.” Id. at documentary types more of or one evidentiary forth the § 204.2 sets C.F.R. paragraph); listed in this evidence marriage is establishing a for standard (6) which is Any other documentation fide: bona marriage the to establish that relevant (B) for eligibility to establish Evidence order to evade not entered into in exemption. was marriage the bona fide any provided decision, although has counsel not specifically dis- In its the identifying information captions evidence it reviewed: or other cussed some the names individuals to mo- indicate attached to instant [C]ounsel has photographs, the time marriage depicted for copy certificate tion a husband, an un- respondent photographs. and her place of the broker, mortgage 2; dated letter from a at 7 n. see also J.A. J.A. 06-4809 pre- photocopies photographs of what at 42-86. husband, sumably respondent and her immigration laws of the United is it supported “one or more types of States. documentary evidence.”7 See 8 C.F.R. § 204.2(a)(1)(iii)(B)(6); 204.2(a)(1)(iii)(B)(2003). § J.A. 8 C.F.R. 06-4089 at 59. The marriage certificate is evidence that a Here, unlike in her motion for a continu- legal marriage occurred, it does not IJ, ance to the suggests the record shed light on any whether the marriage the following relevant was good entered into in faith. Petitioner evidence: an affidavit from her husband also attempts rely on her children’s two that states marriage faith; in good expired “green cards” suggest that I- corrected of their copy marriage certifi- applications cate; approved them, two were expired “green cards” children; thereby rendering from a mortgage marriage letter bona compa- fide. ny that J.A. Yét, states the owner 06-4089 at met with 63-64. petition- there is no er and her husband in they evidence in when the record that connects the applied loan; for a undated, and multiple petitioner’s husband to obtainment of the unexplained photographs. It appears cards,” “green let alone evidence about administrative record also contains other the basis for their issuance.8 While the documentary evidence relevant to the mar- letter from the mortgage company argu riage, a rental including: agreement, a ably some evidence of a “relationship” be bill, bill, cable an energy joint and a bank tween the husband, and her it statement. does not joint show ownership property or the commingling of financial Based on the resources current administrative rec- ord, inasmuch as the letter only the BIA referred did not abuse its discretion their applying when it and the helping determined owner them qualify loan, for a evidence they was “minimal not that joint had a insufficient” loan. See therefore failed establish the exis- C.F.R. §§ tence of a marriage. 204.2(a)(1)(iii)(B)(1),(3); bona fide While J.A. 06-4089 at best, might a 66. To demonstrate the extent it is used as other legal marriage, suggest it does not evidence, a bona provide does not much useful marriage fide purposes immigration information about whether laws because it fails to show that petition- was bona fide it only because referred to a er’s marriage was “entered good into in “relationship” in general without providing faith and not entered into for the purpose any other information about that relation of procuring entry alien’s as an immi ship and it is supported by “one or grant.” 204.2(a)(1)(iii)(B). 8 C.F.R. more types documentary evidence.” See
First, 204.2(a)(1)(iii)(B)(5),(6). while the affidavit from petition- er’s Likewise, husband is some evidence of a while the bona undated unex *8 fide marriage, it plained does not hold much photographs might arguably pro weight as it is not from a party” “third nor vide slight evidence of a relationship, they government 7. The Moreover, contends petition- noted, that the 8. government as the be- er's husband “admitted that he failed sub- cause divorce previous the decrees from necessary paperwork mit the daugh- for the marriages suggest custody that the of her ters.” See Respondent’s Br. at 22. children was respective awarded to her ex- however, interpretation, The better is that husbands, the types omission of other of doc- while he paperwork submitted the to DHS on umentary support evidence to this contention behalf, the lawyer children's their advised particularly is conspicuous. Respondent’s them they that copies did not need to submit 9-10; Br. 06-4809 at J.A. 06-4809 at 111-33. of during those petitioner's documents immi- gration proceedings filings. and According- discretion. BIA abused its the fide marital a bona are not evidence inasmuch BIA’s so here the decision ly, uphold we particularly and relationship, without provided explanation, did been they provided have as it where that agreement rental The and policies, any context. established depart from her husband’s and petitioner impermissi- has both on an rest its decision did not a bona fide evidence is some signature ble basis. joint suggest it could in that marriage See residence. a common tenancy of III. CONCLUSION 204.2(a)(1)(iii)(B)(2); 06- J.A. petitioner whether the case is about This said, evidentiary its That at 134-39. the BIA abused its has established the rental here because limited is value immigration applied it when discretion inasmuch incomplete is largely agreement record, the current her case. On laws to are by provisions various the initials as It to do so. is has failed petitioner aspects many other internal incomplete, courts, to ensure that Congress, not role of signa their incomplete, and the form are family, so- comport laws immigration is not The cable bill are undated. tures And, while cietal, we values. and other only name in her husband’s it helpful as is claim, sympathetic to are he point at some and at best reflects rulings un- follow the BIA’s are bound to purport- a month at a service had cable its discretion. less abused they J.A. 06- lived. which address in ed equally energy The bill 141. 4089 at reasons, we AFFIRM these For all of pro- 142. It at J.A. unhelpful. and DENY the the BIA’s decisions billed gets to who as vides no information for review. addition, it details for the services. residences with different at two service MERRITT, dissenting. Judge, Circuit not coincide with that do dates service case is about immigration This her husband petitioner dates the tradition family values and courts and as re- residences respective lived at those judicial institutions that administrative by peti- 1-130 filed in the second flected give defer- restraint and should exercise Compare J.A. 06-4089 husband.9 tioner’s Congress, judgment ence to joint at 104. J.A. 06-4089 people. representatives elected commingling evidence of bank statement immigra- in mandated that Congress has See 8 C.F.R. financial resources. judicial insti- tion cases administrative 204.2(a)(1)(iii)(B)(3); J.A. 06-4089 mar- sanctity of observe the tutions should However, only petitioner so a man and a woman riage between for a one statement joint bank who American citizens take families evidentiary limits its period month up by split not be spouse will foreign her hus- petitioner value because sepa- not be that mothers will deportation, married since band been and children made from fathers rated provides some While heavy foreign in a land refugees weight marriage, legal of a government. hand of the federal of wheth- light terms rather evidence is given to those quite similar For reasons and, was bona fide er the *9 Ashcroft, in v. Subhan the court enough to show event, strong is not more, rate may suggest households. 9. What sepa- two husband maintain and her tioner (7th Cir.2004), F.3d 591 Benslimane v.
Gonzales,
(7th Cir.2005),
F.3d 828
MORGAN,
Maciver
Petitioner-
Badwan v.
The opinion is inconsistent with Argued: Sept. the three cases cited above. Decided and Filed: Oct. records recited the majority opinion (ie., license, a marriage husband’s affida
vit, cards, green children’s mortgage com
pany loan, letter concerning home rental
agreement, joint bills, joint bank state
ment) convince me that couple were
legally married and living together as hus
band and wife and should have convinced
the immigration judge at grant least to
continuance to supple
ment the record with the infor additional necessary
mation to either quiet prove
whatever judge doubts the had about the
legitimacy their marriage. I would not
create a circuit and intercircuit conflict on question of the application of the stan
dard for a continuance in these administra
tive cases. The result to show anti- seems
immigrant bias agen administrative
cy or a complete disinterest in reaching a
just result that avoids breaking up a fami
ly. again The case demonstrates the rote
way the immigration are treating courts family values that Congress was trying promote creating the marriage excep
tion deportation.
* Pursuant to Appellate Federal Rule of Proce- automatically D. Keisler is for for- substituted 43(c)(2), dure Acting Attorney General Peter Attorney mer General Alberto R. Gonzales.