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.
Interpreting Kucana v. Mukasey, No. 07–1002, 2008 WL 2639039 (7th Cir. July 7, 2008), the 7th Cir analyzed four reopening appeals, under the following analytical framework:
The facts that the Board finds, and the reasons that it gives, en route to exercising its discretion to grant or deny a petition to reopen a removal proceeding, and the discretionary decision itself, cannot be reexamined by a court, whether for clear error, lack of substantial evidence, abuse of discretion, or any other formulation of a ground for reversing an administrative decision; all the court can decide is whether the Board committed an error of law. See also Emokah v. Mukasey, 523 F.3d 110, 119 (2d Cir. 2008). That will usually be a misinterpretation of a statute, regulation, or constitutional provision. Kucana v. Mukasey, supra, at *2–4; Zeqiri v. Mukasey, 529 F.3d 364, 369 (7th Cir. 2008); Cevilla v. Gonzales, 446 F.3d 658, 661 (7th Cir. 2006); Chen v. U.S. Dep’t of Justice, 434 F.3d 144, 153 (2d. Cir. 2006); Almuhtaseb v. Gonzales, 453 F.3d 743, 748 (6th Cir. 2006). But it could also be a misreading of the Board’s own precedent, as in Ssali v. Gonzales, 424 F.3d 556, 564–66 (7th Cir. 2005), or the Board’s use of the wrong legal standard, as in Azanor v. Ashcroft, 364 F.3d 1013, 1019–21 (9th Cir. 2004), or simply a failure to exercise discretion or to consider factors acknowledged to be material to such an exercise. Kucana v. Mukasey, supra, at *4; see also Hanan v. Mukasey, 519 F.3d 760, 764 (8th Cir. 2008) (“wholesale failure to consider evidence”).
The Court then proceeded to analyze several fact patterns, in consolidated cases - which are discussed after the jump.
The 7th cir reversed the Board's denial of reopening where the reasons given were that heavy fines for population control laws were not persecution, and no physical force was to be used to force sterilization - this is so, said the Govt, even if she couldn't pay and got sterilized. The Court said no:
The implication is that if a government tells a religious heretic we are going to fine you $1 million for your heresy and if you cannot pay we are going to burn you at the stake, and the heretic cannot pay and therefore is executed, the burning of the heretic would not, in the Board’s view, amount to persecution. We cannot imagine that this is really the Board’s view, since in cases like In re T-Z-, 24 I. & N. Dec. 163, 173-75 (BIA 2007), the Board has said that “a particularly onerous fine” can amount to persecution even if nonpayment does not subject the victim of the persecution to physical violence.
The CtApp did suggest potential internal relocation, but since the Govt didn't argue that point, CtApp did not pursue it.
[An interesting side issue is whether this case conflicts with the Kucana case, decided the day earlier. Judge Posner didn't specify whether the Board's error was of law or of discretion... CR]
The 7th Cir found that it lacked jurisdiction to review motions to reopen, except for "questions of law" or constitutional questions. The 7th cir distinguished its prior decision in Singh (which held that to apply 1252(a)(2)(B)(ii) to reopening would make the consolidation rule nonsensical), finding that 1252(a)(2)(D) eliminates that problem.
Overturned, Singh v. Gonzales, 404 F.3d 1024, 1026–27 (7th Cir. 2005). Followed, Ali v. Gonzales, 502 F.3d 659 (7th Cir. 2007).
The 7th Cir. issued a 24 page decision which upheld VTC hearings against a facial due process challenge, and found no evidence in this case of interference with lawyer-client relationship (because no attempt to consult during the trial); but found that VTC violated the right to examine evidence because Petitioner couldn't examine a document admitted by the Govt into evidence.
In other holdings, the CtApp found the Gontcharova standard for corroboration had been statutorily overturned, but found that because Real ID says that a credible asylum applicant may be granted asylum without corroboration, that it was incumbent on Board to address credibility. It rejected the argument that she couldn't reasonably produce corroborating documents, stating that she would at least have to explain what she tried before her explanation could be accepted (but noted that since the case is being remanded, that she can produce any new evidence on remand).
Seventh Circuit 
