YAYA TOURE, Petitioner, v. WILLIAM P. BARR, Attorney General of the United States, Respondent.
No. 18-3634
United States Court of Appeals For the Seventh Circuit
ARGUED MAY 15, 2019 — DECIDED JUNE 7, 2019
Petition for Review of an Order of the Board of Immigration Appeals. No. A200-363-680.
Before WOOD, Chief Judge, and EASTERBROOK and HAMILTON, Circuit Judges.
I. Facts & Procedural History
Yaya Toure was born in Cote D‘Ivoire and is a citizen of Mali. He entered the United States on a tourist visa on January 6, 2007. On June 8, 2009, he married Latasha Wolfe, a United States citizen. Conditional on his marriage, the United States Citizen and Immigration Services (“USCIS“) granted Toure permanent resident status on December 17, 2009. In September 2011, Toure and Wolfe filed a joint I-751 petition to remove the conditions on residence pursuant to
In considering that joint petition, USCIS interviewed Toure and Wolfe. The agency issued a Notice of Intent to Deny the petition because the marriage seemed to have been motivated by immigration benefits. Toure and Wolfe lived in the same city but were not living together. When they were asked basic questions about each other‘s lives, their answers conflicted directly. USCIS explained that the couple bore the burden of proving the marriage was not entered into primarily to obtain immigration benefits.
In response, Toure submitted an affidavit asserting that his marriage was bona fide, and Wolfe and Toure‘s attorney also submitted letters saying the marriage was legitimate. USCIS responded on March 15, 2013, finding that the additional evidence was insufficient to rebut its initial finding. After denying Toure‘s motion to reconsider, the agency denied the joint I-751 petition and terminated his conditional permanent resident status pursuant to
On March 12, 2014, Toure appeared before an immigration judge for his master calendar hearing (a brief initial appearance before an immigration judge to determine how the case will proceed). Toure conceded he was removable as charged, but he said that he and Wolfe were still married and that they both intended to proceed with the joint filing, despite the adverse finding by USCIS. He and his lawyer did not tell the immigration judge, however, that he and Wolfe had actually been separated for several months at that time. The immigration judge set the merits hearing on the joint petition for more than three years later, on August 16, 2017. The judge instructed Toure that “if something changes, for a waiver ... you have to file” a new petition with USCIS. Toure‘s attorney assured the immigration judge that he would submit the waiver to the immigration court if Toure‘s status changed. The court also instructed Toure and his lawyer that any additional filings needed to be received by the court at least fifteen days before the scheduled hearing.
On December 3, 2014, Toure and Wolfe divorced. The decree listed the date of their separation as December 2, 2013, more than three months before Toure‘s first appearance before the immigration judge. Neither Toure nor his attorney informed the immigration court of this change in status. On July 11, 2017, nearly two and a half years after his divorce and only a month before the long-scheduled hearing on the merits of his removal, Toure filed a new I-751 petition, this time requesting a waiver of the joint-filing requirement pursuant to
The immigration judge, however, denied the oral motion to continue, finding that Toure did not show good cause for the continuance as required by 8 C.F.R. § 1003.29. The judge rejected Toure‘s explanation for failing to disclose the changes in his status in a timely manner or to request a continuance fifteen days ahead of the hearing, as required. Toure‘s counsel explained that he did not feel it was important to tell the court about the separation since they were not yet divorced and there was a chance they might reconcile. The judge rejected this argument. Toure was represented by the same attorney in both his immigration and divorce proceedings, meaning counsel knew during the March 2014 hearing that the marriage—which USCIS had already deemed a sham—was also in danger of ending very soon. The judge stated her view that Toure needed to disclose this information before the merits hearing. It also came to light that Toure had had to serve the 2014 divorce decree on Wolfe by publication. He did not know where she lived. The judge emphasized that Toure had three years between hearings to notify the immigration court of his divorce, to submit a waiver, or to request a continuance. Toure‘s attorney tried to take the blame, explaining that the delay was due to the length of time between hearings and that the failures to take more timely action were “human error” because he was a sole practitioner. The immigration judge found that counsel‘s reasons did not demonstrate good cause and denied the motion to continue. The immigration judge explained that she did not have jurisdiction over Toure‘s new I-751 petition and thus he had no pending matters before the immigration court. The judge then ordered Toure removed to Mali under
The Board of Immigration Appeals dismissed Toure‘s appeal. Citing Matter of L-A-B-R-, 27 I. & N. Dec. 405 (A.G. 2018), the Board found that the immigration judge properly denied the request for continuance because the motion was untimely and good cause was not shown. More specifically, the Board dismissed the appeal because Toure‘s petition for a waiver came nearly three years after his divorce and he did not request a continuance for USCIS to adjudicate the 2017 waiver application until the day of the hearing. The Board found the only reason offered for the delay—that his attorney is a sole practitioner who inadvertently failed to notify the immigration court of the changes in his case—did not satisfy the good cause requirement. Toure petitioned this court for review.1
A. Scope of Jurisdiction
Our jurisdiction to review a final order of removal under
B. Denial of the Continuance
We review the denial of a motion to continue for abuse of discretion. Giri v. Lynch, 793 F.3d 797, 800–01 (7th Cir. 2015). When the immigration judge gives a reason for her decision to deny the continuance, “this court will uphold the decision unless it was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.” Id. at 801, quoting Calma, 663 F.3d at 878. Because the Board of Immigration Appeals supplemented the immigration judge‘s reasoning rather than simply adopting her decision, we review the judge‘s decision as supplemented by the Board‘s. Giri, 793 F.3d at 800.
Toure argues that the immigration judge and Board should have granted the continuance to allow USCIS time to adjudicate his second I-751 petition. He also asserts that they abused their discretion in allowing DHS to renege on its agreement to the continuance because DHS counsel was not ready for the scheduled merits hearing.
“The Immigration Judge may grant a motion for continuance for good cause shown.”
At least until recently, the Board said that an immigration judge should consider the following factors when evaluating whether to grant a continuance to give another agency time to adjudicate a collateral matter: “‘(1) the DHS response to the motion; (2) whether the underlying visa petition is prima facie approvable; (3) the respondent‘s statutory eligibility for adjustment of status; (4) whether the respondent‘s application for adjustment merits a favorable exercise of discretion; and (5) the reason for the continuance and other procedural factors.‘” Cadavedo, 835 F.3d at 783, quoting Matter of Hashmi, 24 I. & N. Dec. 785, 790 (BIA 2009). Between the immigration judge‘s and Board‘s decision in Toure‘s case, the Attorney General changed this standard in Matter of L-A-B-R-, explaining that “immigration courts should continue to apply a multifactor test to assess whether good cause exists for a continuance for a collateral proceeding, but that the decision should turn primarily on the likelihood that the collateral relief will be granted
Under either standard, we find no abuse of discretion here. The immigration judge and Board gave rational reasons for the denial. They did not depart inexplicably from established policies, and there is no indication that they rested their decisions on an impermissible basis.
First, though DHS initially agreed to the continuance, it opposed Toure‘s motion once the timeline of relevant events became clear. Toure gives great weight to the initial agreement and argues it was grounds for a continuance. We assume that the agreement might have been sufficient to have permitted a continuance, but it did not require the judge to grant the continuance. The immigration judge is required to find good cause for the continuance and is not required to grant one merely because the parties agree to one. L-A-B-R-, 27 I. & N. Dec. at 416 (immigration judge need not treat DHS‘s position on requested continuance as controlling: “the regulation does not include an exception for unopposed motions or those filed on consent“).
Next, there was no “prima facie approvable” matter pending before the immigration judge or any other agency. Since Toure and Wolfe had filed the joint I-751 petition in 2011, which had been denied, the couple had divorced and Toure had filed a new I-751 petition asking for a waiver of the joint-filing requirement. As the immigration judge said, she had no authority over the new waiver petition that had not yet been adjudicated by USCIS. See Matter of Lemhammad, 20 I. & N. Dec. 316, 322 (BIA 1991) (“original jurisdiction to rule on the merits of the hardship waiver application rests only with the appropriate regional service center director, and not the immigration judge“). This left nothing for the immigration judge to continue but the ultimate disposition of the case. L-A-B-R-, 27 I. & N. Dec. at 415 (“The immigration judge should not grant a continuance where the respondent appears to be seeking interim relief as a way of delaying the ultimate disposition of the case.“).
Toure‘s hope that USCIS would grant his waiver was speculative at best. Recall that the discretionary collateral relief he sought was the waiver of the joint-filing requirement. Waiver of the joint-filing requirement may have been available (but was not guaranteed) if Toure could have demonstrated that he would suffer extreme hardship if he were removed and “the qualifying marriage was entered into in good faith by the alien spouse, but the qualifying marriage has been terminated (other than through the death of the spouse) and the alien was not at fault” in failing to meet the requirements for conditional permanent resident status.
In short, the judge and the Board did not abuse their discretion in denying the motion to continue to pursue that relief. See Cadavedo, 835 F.3d at 784 (“The Board did not abuse its discretion here in affirming the immigration judge‘s denial of the request for a continuance to seek speculative relief from USCIS‘s fraud bar.“); Souley v. Holder, 779 F.3d 720, 723 (7th Cir. 2015) (denying motion to continue to allow petitioner‘s wife to file a second I-130 petition was not an abuse of discretion).
In addition, Toure did not diligently pursue this collateral remedy. See L-A-B-R-, 27 I. & N. Dec. at 412 (“Good cause also may not exist when the alien has not demonstrated reasonable diligence in pursuing
For these reasons, Toure‘s petition for review is DENIED.