Argued: January 27, 2015.
As Corrected March 5, 2015.
On Petition for Review of an Order of the Board of Immigration Appeals. No. A089 601 787.
For MOHAMED BOURAS, Petitioner: Scott E. Bratton, Attorney, WONG & ASSOCIATES, Cleveland, OH.
For ERIC H. HOLDER, JR., Attorney General of the United States, Respondent: OIL, Attorney, Jessica E. Sherman, Attorney, DEPARTMENT OF JUSTICE, Civil Division, Immigration Litigation, Washington, DC.
Before POSNER, SYKES, and HAMILTON, Circuit Judges. POSNER, Circuit Judge, dissenting.
Hamilton, Circuit Judge.
Petitioner Mohamed Bouras, a citizen of Algeria, was granted status as a conditional permanent resident based on his marriage to a U.S. citizen. That marriage ended by divorce before Bouras had obtained unconditional permanent residency. He was later placed in removal proceedings after he failed to convince the United States Citizenship and Immigration Services that he had entered the marriage in good faith.
In immigration court, Bouras sought a discretionary waiver available to aliens who can show that they entered in good faith a failed marriage with a U.S. citizen. Bouras testified at the final removal hearing,
but neither his ex-wife nor any other witness appeared at the hearing to testify about the marriage. At the end of the hearing, Bouras sought a continuance so that his ex-wife could testify as well. The immigration judge denied that request, saying that no " extenuating circumstances" justified a continuance. The judge then found that Bouras was not eligible for the discretionary waiver because he had not established the marriage had been in good faith. The Board of Immigration Appeals upheld that decision, including the denial of a continuance. The Board endorsed the judge's explanation and added its own reasons for concluding that Bouras's request for a continuance was properly denied. Bouras has petitioned for review. He does not challenge the judge's and the Board's finding that he failed to prove his case. He argues only that he should have been granted a continuance so that his ex-wife could testify on his behalf. We deny the petition. The denial of Bouras's last-minute request for a continuance was not an abuse of discretion.
I. Factual and Procedural Background
Bouras entered the United States in 1997 as a non-immigrant visitor for business. See 8 U.S.C. § 1101(a)(15)(B); 22 C.F.R. § 41.31(a). He overstayed his visa and thus was, like so many others, living in this country illegally. In September 2006, while Bouras was living in Chicago, he married Jennifer Schreiner, a U.S. citizen who lived in Ohio. A year after marrying he became a conditional permanent resident based on that marriage. See 8 U.S.C. § 1186a(a)(1); 8 C.F.R. § 216.1.
To gain unconditional status, a conditional permanent resident must establish that he or she entered into the marriage in good faith. This showing is made most often by filing a joint petition with the citizen spouse and appearing with the spouse for a personal interview. 8 U.S.C. § 1186a(c), (d); 8 C.F.R. § 216.4(a)(1), (b). The necessary " Petition to Remove Conditions on Residence" (also called a Form I-751) can be filed only within the 90-day period before the second anniversary of obtaining conditional permanent residency. 8 U.S.C. § 1186a(d)(2); 8 C.F.R. § 216.4(a)(1).
If the marriage ends before the alien has satisfied these requirements, the alien can still obtain unconditional status by filing the Form I-751 without the spouse and requesting a discretionary waiver. To receive the discretionary waiver--and with it, the removal of the conditions on residence--the alien must demonstrate that the marriage was entered in good faith even though it later failed. 8 U.S.C. § 1186a(c)(4)(B); 8 C.F.R. § 216.5(a)(1)(ii).
In early 2009, Bouras and Schreiner divorced. For most of their two-and-a-half year marriage, Bouras had continued working in Chicago while Schreiner remained in Ohio. For at least six months of their marriage, Bouras had returned to Algeria alone to visit his family. After the divorce, Bouras submitted a Form I-751 to United States Citizenship and Immigration Services requesting a discretionary waiver of the joint-filing requirement. As evidence that his marriage to Schreiner was in good faith, Bouras submitted an affidavit from Schreiner, as well as letters and affidavits from several friends and family members, utility bills, photographs of him with Schreiner, copies of unsigned joint income tax returns saying that Bouras had been unemployed and earned nothing during their marriage, an e-mail from Southwest Airlines confirming Schreiner's purchase of a ticket from Ohio to Chicago in December 2006, Bouras's Ohio driver's license and car title, an undated letter showing that Schreiner had opened a joint checking account with Fifth Third Bank,
and two bank statements from Fifth Third showing minimal activity in that account.
In her brief affidavit, Schreiner said that she had lived in Columbus during the marriage while Bouras lived in Chicago. She explained that he did so only because he could not find a job in Ohio, and that every month he took a couple of weeks off from his job driving a cab in Chicago to live with her in Columbus. Schreiner said that she and Bouras had divorced because he wanted children and she did not (she had two young children from a previous marriage). She said that she had changed the electric service for her home into Bouras's name to make him feel like he " belong[ed] in [their] home" and that they had a joint checking account with Fifth Third Bank that " was not utilized often." Schreiner also said there were not many pictures of the couple because usually one of them was taking the pictures, mostly of her children. In the other affidavits and letters submitted by Bouras, family and friends described interactions with the couple.
In early 2010, USCIS denied Bouras's request for a waiver, finding that he had failed to show by a preponderance of the evidence that he and Schreiner married in good faith. The agency noted, among other things, that the couple had not lived together during the marriage. (Everyone recognizes that married couples may sometimes need to live apart for a host of reasons. See, e.g., Surganova v. Holder, 612 F.3d 901, 905 (7th Cir. 2010). Still, an undocumented alien's brief marriage to a U.S. citizen, during which the couple spent little or no time together and kept their property and finances separate, raises obvious warning signs for immigration authorities. See 8 C.F.R. § 1216.5(e)(2) (stating that evidence relevant to " whether an alien entered into a qualifying marriage in good faith ... may include ... [d]ocumentation relating to the degree to which the financial assets and liabilities of the parties were combined" and " [d]ocumentation concerning the length of time during which the parties cohabited after the marriage and after the alien obtained permanent residence" ).) Bouras's status as a conditional permanent resident was terminated, and the agency issued a Notice to Appear charging him with removability. See 8 U.S.C. § 1227(a)(1)(D)(i).
At a February 2011 appearance before the immigration judge, Bouras conceded removability but renewed his request for a discretionary waiver of the joint filing requirement. A year later, in February 2012, the immigration judge scheduled the final removal hearing for August 2012. Notice of that hearing was sent to Bouras's lawyer. About three weeks before the hearing date, Bouras tendered as evidence essentially the same materials he had tendered in support of his Form I-751. He also submitted a witness list naming both himself and his ex-wife, Schreiner.
At the beginning of the final removal hearing, Bouras's lawyer announced that Schreiner had sent him a fax earlier in the week saying she would be unable to attend. In the fax, dated five days before the hearing, Schreiner said that she had been " just notified" of the hearing date and was unable to take time off work for the next six to eight weeks because she was needed to train a new hire. Bouras's lawyer did not request a continuance at that time but went forward with the hearing, calling Bouras to testify.
Bouras testified that he first met Schreiner while visiting Columbus, Ohio, in 2005 and married her a year later. He had worked as a cab driver in Chicago during the marriage, Bouras said, because he needed the money and his efforts to find work in Columbus (by running a hotdog stand and obtaining a chauffeur's license)
were unsuccessful. According to Bouras, he routinely worked in Chicago for two or three weeks and then joined Schreiner in Columbus for two weeks. During the marriage, he also had spent a total of six months visiting Algeria, though never with Schreiner. Bouras testified that he and Schreiner split up because he wanted children but she did not.
When asked about the joint tax returns he had submitted, Bouras said that Schreiner sent them to use as evidence in the removal proceedings but that he had never seen them before. He acknowledged that his income was not reported on the returns. He said that he and Schreiner did not jointly own any property, but said he had contributed half of the mortgage payments on Schreiner's house during the marriage. When asked about the couple's seldom-used joint checking account, Bouras said he did not have records showing how often the account had been used. He said that he had withdrawn money from the account to buy equipment for his hotdog stand but no longer had records of those purchases.
After Bouras finished his testimony, his counsel for the first time requested a continuance so that Schreiner could testify. The immigration judge denied the request, explaining that he does not " continue the cases once they're scheduled for a final hearing unless there's an emergency situation" or " unless there's some extenuating circumstance."
The judge then gave his oral decision denying Bouras's petition for a discretionary waiver and ordering him removed to Algeria. The judge found not credible Bouras's testimony that he lived apart from Schreiner because he could not find work in Columbus. Because no witnesses were available for cross-examination, the judge gave little weight to the affidavits that Bouras had submitted. The affidavits were further undermined, the judge reasoned, by the facts that the couple did not have joint assets and that Bouras was unfamiliar with his own purported tax returns. Finally, the judge noted that Bouras had made several long trips to Algeria during the brief marriage, always without Schreiner. The judge did not find that the marriage was a sham, but he found that Bouras had failed to meet his burden of proving that he entered into the marriage in good faith.
The Board upheld the immigration judge's denials of the discretionary waiver
and the request for a continuance. The Board agreed with the judge that Bouras had failed to prove by a preponderance of the evidence that his marriage to Schreiner was in good faith. The Board also concluded that the judge had correctly denied Bouras's request for a continuance because, the Board explained, Bouras had not demonstrated good cause as required by regulation. See 8 C.F.R. § 1003.29. The judge's refusal to grant a continuance was justified, the Board reasoned, because Bouras (1) had waited until the day of the final hearing to request the continuance, (2) had not " explained why his ex-wife was apparently not provided notice until a few days before the hearing," ...