Case Information
*1 Before P OSNER , M ANION , and T INDER , Circuit Judges . M ANION , Circuit Judge
. Jоse Miguel Palma-Martinez peti- tions for review of the Board of Immigration Appeals (BIA) decision affirming the Immigration Judge’s (IJ) order of re- moval. Because the IJ neither erred in holding that Palma- Martinez was ineligible for a waiver nor abused his discre- tion in denying Palma-Martinez a continuance, we deny the petition.
I. Background Palma-Martinez is a native of Guatemala. He became a lawful permanent resident in 2007. In 2011, he pleaded guilty to conspiracy to knowingly transfer a false identifica- tion document in violation of 18 U.S.C. § 1028(f). On May 6, 2013, the government commenced removal proceedings against him with a notice to apрear in immigration court charging that he was removable under Section 237(a)(2)(A)(i) of the Immigration and Nationality Act (INA) for having committed a crime of moral turрitude within five years af- ter admission. See 8 U.S.C. § 1227(a)(2)(A)(i).
Before the IJ, Palma-Martinez admitted the allegations contained in the notice, but requested a continuance bеcause he had filed a motion to set aside and vacate his conviction. He also argued that he was eligible for a stand-alone waiver of inadmissibility under INA § 212(h) granted . See 8 U.S.C. § 1182(h). On September 30, 2013, the IJ ordered that Palma-Martinez be removed because he had not demonstrated good cause for a continuance and was ineligi- ble for a waiver under § 212(h). On March 21, 2014, the BIA affirmed the IJ’s decision. Palma-Martinez appeals. 3
II. Analysis
“When the BIA adopts and affirms the IJ’s decisiоn and
adds its own analysis ... we review both decisions. We apply
the principles of
Chevron
deference to the BIA’s interpreta-
tion of the immigration laws.”
Halim v. Holder
,
A. Palma-Martinez was ineligible for a stand-alone waiver.
Under INA § 212(h) the Attorney General may waive the ground of inadmissibility applicable to Palma-Martinez (the crime of moral turpitude) if the denial of admission would result in extreme hardship to a lawfully resident family member and he is applying or reapplying for a visa, admis- sion, or an adjustment of status. 8 U.S.C. § 1182 (h)(1)(B), (C)(2). According to 8 C.F.R. § 1245.1(f), the sole means of requesting a § 212(h) waiver for an alien in thе United States is to submit an application concurrent with an application for adjustment of status. Palma-Martinez characterized his request for а § 212(h) waiver as a stand-alone application be- cause he did not apply concurrently for an adjustment of sta- tus.
Our decision in Klementanovsky v. Gonzales , 501 F.3d 788 (7th Cir. 2007), forecloses the argument that a § 212(h) waiver is available to aliens facing removal. In that case we held that the plain language of § 212(h) limits waivers to aliens who seek a visa, аdmission, or an adjustment of status, so that, conversely, § 212(h) waivers are not available to aliens who wish to avoid removal. We further held that Congress’s dis- tinction between aliens seeking admission and those being deported is not an equal protection violation. Id . at 792–93.
This is why Palma-Martinez sought a nunc pro tunc (“now for then”) waiver. For a time, a waiver granted nunc pro tunc could cure the grounds for an alien’s inadmissibility retroactively. Id . at 790. It did this for aliens in Palma- Martinez’s circumstances by treating the alien as if he had been placed in admissibility proceedings after returning from a foreign trip. The alien, however, must actually have taken the foreign trip. There may have been some confusion in the past about the availability of stand-alone § 212(h) waivers granted nunc pro tunc . In The Matter of Rivas , 26 I. & N. Dec. 130. (BIA 2013), however, the BIA definitely deter- mined that they are not availаble.
In response, Palma-Martinez relies on
Margulis v. Holder
,
725 F.3d 785 (7th Cir. 2013), in which we overturned the
BIA’s denial of a waiver and stated that because
Rivas
’s deci-
sion invalidating waivers “was based on a stat-
utory interpretation, thеre may be room for argument to a
reviewing court that the
Rivas
decision is erroneous.”
Id
. at
789. However,
Rivas
’s holding has since been affirmed by the
Eleventh Circuit,
Rivas v. U.S. Atty. Gen.
,
Furthermore, Palma-Martinez misunderstands our hold-
ing in
Margulis
. In that case, Margulis drove to Canada but
was denied entry, so he performed a U-turn and returned to
the United States. Upon returning, he was placed in removal
proceedings, rather than admissibility proceedings, beсause
immigration officials determined that he never left the Unit-
ed States even though he briefly crossed the border into
Canada. We remanded the case because the BIA did not
support its conclusion that Margulis had not departed and
was not seeking admission.
Margulis
,
B. The IJ did not err by denying Palma-Martinez a con- tinuance.
The issue of the continuance is moot. Palma-Martinez ar- gues on appeal that the IJ should have granted him a contin- uance while he pursued his motion challenging his underly- ing conviction, but his motion was dismissed by the district court on January 14, 2014, at his request. Accordingly, his need for a continuance to pursue post-conviction relief is no longer a live controversy. See Qureshi v. Gonzales , 442 F.3d 985, 988 (7th Cir. 2006) (alien’s challenge to the IJ’s dеnial of continuance to await his wife’s I-130 petition rendered moot by the intervening dismissal of the I-130 petition).
Alternatively, the IJ’s denial of a continuancе was not an abuse of discretion. Palma-Martinez had to demonstrate good cause for the continuance. 8 C.F.R. §§ 1003.29, 1240.6. However, as the IJ pointed out, а pending collateral attack is not good cause because its tentative nature does not affect the finality of the conviction for immigration purposes. See U.S. v. Wilson , 240 Fed. Appx. 139, 144 (7th Cir. 2007). Fur- thermore, the IJ found that the post-conviction relief was too speculative. Palma-Martinez filed his post-conviсtion motion arguing ineffective assistance of counsel because his attorney did not advise him of the effect his guilty plea would have on his immigration status. However, the IJ quoted the por- tion of the guilty plea transcript where Palma-Martinez ad- mits to the judge that he waived any claim to ineffective as- sistance of counsel, that he understood his guilty plea could affect his immigration status, and that his attorney advised him of this. See Jimenez-Guzman v. Holder , 642 F.3d 1294, 1297–98 (10th Cir. 2011) (denial of continuance not an abuse of discretion because pending collateral attack did not affect finality of conviction and because plea agreement foreclosed any claim of ineffective assistance of counsel).
III. Conclusion The IJ neither erred in holding that Palma-Martinez was ineligible for a stand-alone waiver under INA § 212(h), nor abused his discretion in denying Palma-Martinez a continu- ance. Accordingly, the petition for review is DENIED.
Notes
[*] We substitute Loretta E. Lynch, the current Attorney General of the United States, as the Respondent in this action. See Fed. R. App. P. 43(c).
[1] 18 U.S.C. § 1028 makes it a felony to commit fraud and related ac-
tivity in connection with identification documents and the authentication
features and information of identification documents. Crimes involving
fraud have always been considered crimes of moral turpitude.
See Jordan
v. De George
,
[2] Palma-Martinez did not apply concurrently for an adjustment of status because he had already sought and obtained an adjustment of sta- tus to permanent resident in 2007.
[3] Palma-Martinez never claims that he took a foreign trip after his conviction. He simply asserts that a waiver would aрply to him. Therefore, Parma-Martinez is more like Klementanovsky than Margulis in this respect.
[4] Curiously, Palma-Martinez did not mention in his brief that his post-conviction motion was dismissed, even though his brief was filed after the motion’s dismissal.