Petition for Review of an Order of the Board of Immigration Appeals. No. A026 702 335 Petition for Review of an Order of the Board of Immigration Appeals. No. A088 187 224
The opinion of the court was delivered by: Wood, Circuit Judge.
SUBMITTED JUNE 14, 2011*fn2
DECIDED DECEMBER 5, 2011*fn3
Before POSNER, ROVNER, and WOOD, Circuit Judges.
The petitioners in these consolidated cases, Ricardo Calma and Oleh Khomyshyn, have a great deal in common. Both have been in the United States for many years without permission, and each would like to adjust his status to that of lawful permanent resident through relatives who are legitimately in the United States. When the time came for an immigration judge to issue a decision, each was found ineligible for permanent residence because of the lack of an approved family‐relative petition, Form I‐130. Confronted with that obstacle, they asked the IJs to continue the removal proceedings, but the IJs denied those requests and ordered removal. We have consolidated their petitions for review. Although we are satisfied that we have jurisdiction over those petitions, we find no abuse of discretion in the judges' rulings and thus deny both petitions.
Calma is a citizen of the Philippines who came to the United States as a temporary worker in 1982. In 1986 he married Pamela Fuoss, a U.S. citizen, and she filed an I‐130 petition on his behalf. But during her interview in support of the application and later in an affidavit, Fuoss admitted that she married Calma only so that he could remain in the United States. She withdrew her petition, prompting the legacy Immigration and Naturalization Services to place Calma in deportation proceedings before an IJ. After Calma failed to show up, the INS administratively closed the case in September 1987.
Calma reemerged 18 years later, in April 2005, when his son Roderick, a U.S. citizen, filed a second I‐130 petition on his behalf. The Department of Homeland Security approved Roderick's petition in July of that year, and in September Calma moved to restore his earlier deportation hearing (by this time called a removal proceeding) to the calendar. Calma indicated that once the proceeding was active again, he would apply for permanent residence based on his son's approved I‐130 petition.
Calma's petition to restore the case was successful, though as we shall see, a Pyrrhic victory. IJ Zerbe held a deportation hearing, at which the judge found that Calma was deportable for overstaying his visa, as charged in the 1987 administrative‐closure order. Calma informed the IJ that he was working to obtain an adjustment of status through his son. In response, the IJ continued the hearing for a year to give Calma time to apply for his adjustment of status and to give the government an opportunity to perform necessary background checks. At the next hearing, the government informed Calma that it intended to revoke his son's I‐130 petition based on the fraudulent marriage in 1986. The IJ continued the matter a second time to await the resolution of the revocation proceedings.
The month before Calma's next hearing, DHS revoked Roderick's I‐130 petition after concluding that Calma married Fuoss for immigration benefits. The agency determined that the rebuttal evidence that Calma submitted, including affidavits from Calma, his current wife, and the couple who arranged the sham marriage, failed to refute the 1987 affidavit filed by Fuoss admitting the fraud. DHS concluded that the 1986 marriage "was not valid for immigration purposes," and that Calma's fraud was a "good and sufficient" reason to deny his son's I‐130 petition. With the I‐130 petition revoked, Calma no longer had a basis for seeking permanent residence in the United States. At that point, he asked for a continuance so that he could appeal the decision to revoke to the Board. The IJ accommodated this request with a postponement until October 24, 2008.
Unfortunately, when Calma returned on that date, the Board still had not resolved his appeal from the revocation of the I‐130 petition. Calma asked for yet another continuance, but this time the IJ's patience was at an end. Commenting that he did not believe that any further delay was warranted, he denied this last postponement and ordered Calma removed.
The Board dismissed Calma's appeal from the order denying the continuance in July 2010. It found that the pending I‐130 appeal was insufficient cause for granting the continuance. Moreover, the Board continued, Calma was unable to show prejudice to his application for permanent residence because he presented no evidence that his appeal from the revocation of the I‐130 petition had been successful. (This was putting it mildly; in fact, five months earlier the Board had dismissed Calma's appeal of the revoked visa petition, citing Calma's fraudulent marriage. Calma did not petition for review of that decision.) The petition for review now before us in No. 10‐2795 is from this decision of ...