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Hassan v. Immigration and Naturalization Service

April 1, 1997

TENNY HASSAN,

PETITIONER,

v.

IMMIGRATION AND NATURALIZATION SERVICE,

RESPONDENT.



Petition for Review of an Order of the Board of Immigration Appeals.

A72-681-417

Before Bauer, Flaum, and Kanne, Circuit Judges.

Kanne, Circuit Judge.

Argued January 23, 1997

Decided April 1, 1997

We must decide whether the Board of Immigration Appeals ("BIA") abused its discretion or violated Tenny Hassan's due process rights by refusing to continue his deportation proceedings so that his wife could appeal the denial of an immediate relative visa petition filed on his behalf. Because we find that the BIA did not abuse its broad discretion in refusing to grant the continuance, we affirm its decision dismissing Mr. Hassan's deportation appeal and deny the petition for review.

I. History

Tenny Hassan is a native and citizen of Nigeria who was last admitted into the United States as a nonimmigrant visitor for business on September 11, 1987. Hassan's authorization to remain in this country expired one month later on October 11. On February 2, 1994, the Immigration and Naturalization Service ("INS") commenced deportation proceedings against Hassan, charging him with remaining in the United States longer than permitted. Hassan concedes deportability because he overstayed his visa, but he applied for a suspension of deportation.

Hassan believes that he is entitled to a suspension of deportation based on an immediate relative visa petition (an I-130) that his wife filed on his behalf in June 1993. An I-130 visa petition is a prerequisite to an alien's application for permanent residence based on marriage to a United States citizen. Hassan married his wife LaVerne --a United States citizen by birth--on April 26, 1991; the couple previously gave birth to a child on January 29, 1991. Although Hassan's wife continued to support the visa petition, the INS District Director denied the petition *fn1 and began the deportation proceedings on February 2, 1994. Hassan's wife filed a timely appeal from the District Director's decision on February 18, 1994, and this appeal is apparently still pending.

The deportation proceedings that began on February 2, 1994 lingered over the next year, and on April 14, 1995 the IJ decided that Hassan was deportable because Hassan had overstayed his visa as a nonimmigrant visitor for business. Moreover, the IJ also determined that as a matter of law Hassan was not eligible for suspension of deportation or voluntary departure because Hassan could not establish that he had been a person of good moral character during his stay in the United States. The IJ reached this conclusion after finding that Hassan's prior conviction for deceptive practices constituted a crime of moral turpitude. *fn2 Finally, the IJ stated that he had no jurisdiction to review the denial of the I-130; instead, the IJ treated Hassan's requests and comments regarding the treatment of the I-130 as a request for a continuance, which the IJ subsequently denied. The IJ, however, added that Hassan could ask to have his deportation case reopened if an appeal of the immediate relative visa petition were granted.

Hassan appealed the IJ's decision, claiming that it "was an abuse of discretion for the Judge to refuse to continue this matter, when the facts clearly show that the I-130" was approvable. The BIA subsequently dismissed Hassan's deportation appeal finding that the IJ properly refused to grant Hassan's motion for a continuance.

II. Analysis

The primary issue we must decide is whether the BIA abused its discretion in denying Hassan's request to continue his deportation proceedings. "The granting of a continuance is within the sound discretion of the IJ and is reviewed for clear abuse." Castaneda-Suarez v. INS, 993 F.2d 142, 146 (7th Cir. 1993) (citing Castaneda-Delgado v. INS, 525 F.2d 1295, 1300 (7th Cir. 1975)). Thus, we will uphold the BIA's decision "unless it was made without a rational explanation, it inexplicably departed from established policies, or it rested on an impermissible basis, e.g., invidious discrimination against a particular race or group." Id. (quoting Cordoba-Chaves v. INS, 946 F.2d 1244, 1246 (7th Cir. 1991)).

An IJ may grant a motion for continuation in a deportation proceeding upon an alien's showing of "good cause." 8 C.F.R. sec. 3.29; see also 8 C.F.R. sec. 242.13 (empowering an IJ to grant "a reasonable adjournment" after the commencement of a hearing for "good cause shown"). Significantly, an alien is generally entitled to the favorable exercise of an IJ's discretion regarding a request for a continuance where the District Director has not yet adjudicated a prima facie approvable visa petition and adjustment of status application. In re Matter of Garcia, 16 I & N Dec. 653, 656-57 (BIA 1978). The BIA's decision in Garcia, however, did not "establish an inflexible rule" that would ...


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