NIJC - 7th cir finds Board cannot deny continuance for arriving alien AOS apps just b/c USCIS decides apps

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7th cir finds Board cannot deny continuance for arriving alien AOS apps just b/c USCIS decides apps

Monday, 28 July 2008

Ceta v. Mukasey (7th Cir. 7/25/08)

RIPPLE Wood Bauer

Under 2006 regulations, IJs don't have jurisdiction to consider AOS applications by arriving aliens - but USCIS has concurrent jurisdiction to do so. The IJ and BIA denied a continuance here, because the Petitioner is an arriving alien, and so the application is outside their jurisdiction - but didn't consider the reg comment that “it will ordinarily be appropriate for an immigration judge to exercise his or her discretion favorably to grant a continuance . . . in the case of an alien who has submitted a prima facie approvable visa petition and adjustment application in the course of a deportation hearing.” See Interim Rule Notice, 71 Fed. Reg. at 27,589-90. Ct app held that:

1. Jurisdiction not stripped by Ali v. Gonzalez, 502 F.3d 659, 663 (7th Cir. 2007), because would have the “effect of nullifying the statutory opportunity to adjust status.” Id. at 665 (citing Subhan v. Ashcroft, 383 F.3d 591 (7th Cir. 2004)).

2. Found that denial of continuance to let USCIS decide Adjustment had effect of denying AOS, because (a) removals usually have to be effectuated within 90 days, (b) you cannot adjust status from abroad.

3. Noted that ability for arriving aliens to adjust in proceedings would be illusory, unless agencies coordinate: "under the new regulatory regime, unless these subagencies engage in some minimal coordination of their respective proceedings—for example, by the immigration courts favorably exercising discretion, in the appropriate case, to continue proceedings to allow the other subagency to act—the statutory opportunity to seek adjustment of status will prove to be a mere illusion."

4. Disagreed with 11th Cir in Scheerer v. U.S. Attorney Gen., 513 F.3d 1244 (11th Cir. 2008): "In our view, the fact that Mr. Ceta’s application, in accordance with the amended regulation, will not be adjudicated by the immigration courts is not a sound or responsive reason for denying his continuance request. See Sheng Gao Ni, 520 F.3d at 129-30; Kalilu, 516 F.3d at 780; see also Benslimane, 430 F.3d at 832; Subhan, 383 F.3d at 595 * * * * Indeed, granting a continuance in appropriate cases, as contemplated in the Interim Rule Notice, will ensure that the immigration courts do not intrude into the USCIS’ new role, under the amended regulations, as the sole adjudicator of adjustment applications. Furthermore, any difficulty in coordinating the proceedings—for example, after the USCIS adjudicates the adjustment application—may be resolved by counsel notifying the IJ of the ultimate outcome of the adjustment application." [Note pending cert petition in Scheerer. - CR]

5. Found that Board gave no good reason for denying continuance. Failure to file AOS with USCIS until appeal was not unreasonable under these odd circumstances (where regs enacted while case at BIA). CtApp noted that it would take 12 months to adjudicate the I-485, by which time he would have been long-removed.

6. Because it ruled for Petitioner on other grounds, did not address argument that Board's denial of the continuance was contrary to the purpose and intent of the regulation.

Read opinion here:

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