Argued: March 3, 2015.
Petition for Review of an Order of the Board of Immigration Appeals. No. A088-646-916.
For SALEY SOULEY, Petitioner: Swaray E. Conteh, Attorney, Indianapolis, IN; Ikedigbo Nnaemeka, Attorney, IKEDIGBO NNAEMEKA, LEGAL COUNSEL, Indianapolis, IN.
For ERIC H. HOLDER, JR., Attorney General of the United States, Respondent: OIL, Attorney, Holly Smith, Attorney, DEPARTMENT OF JUSTICE, Civil Division, Immigration Litigation, Washington, DC.
Before POSNER, KANNE, AND TINDER, Circuit Judges.
Saley Souley, a citizen of Niger, petitions for review from the denial of his request to continue his removal proceedings to give his U.S. citizen wife time to file a second I-130 visa petition on his behalf (the government had already denied her first). The IJ thought her second, unfiled petition had no greater chance of success and denied the request for a continuance. Because Souley did not present evidence of good cause for the continuance, we deny the petition for review.
Souley entered the United States in 2005 on a visitor's visa (the validity of which is not reflected in the record) and overstayed. In 2008 the Department of Homeland Security placed Souley--at the time living in Harrisburg, Pennsylvania--in removal proceedings for remaining in the United States without authorization,
see 8 U.S.C. § 1227(a)(1)(B), and being inadmissible at the time of his entry because he lacked a valid entry document, see id. § 1227(a)(1)(A). Souley failed to appear for his hearing in August 2008, so an IJ in Philadelphia ordered him removed in absentia.
Apparently unaware of the removal order, Souley moved from Pennsylvania to Indiana and married Rochelle Thornton, a U.S. citizen, in June 2009. Nearly two years later, Souley, assisted by counsel, filed an application to adjust his status, and Thornton applied concurrently on his behalf for an I-130 " alien relative" visa--the first step toward adjusting his status to permanent resident, see 8 U.S.C. § § 1151(b)(2)(A)(i), 1255(i); 8 C.F.R. § 245.2; Nunez-Moron v. Holder, 702 F.3d 353, 354 n.1 (7th Cir. 2013) (as amended on denial of rehearing) (explaining that an approved I-130 petition allows a person illegally present in the United States to remain and apply for adjustment of status); In re Hashmi, 24 I. & N. Dec. 785, 789--90 (BIA 2009). In late 2011 immigration officers interviewed the couple and detained Souley based on the outstanding August 2008 removal order.
While detained, Souley moved the immigration court in Philadelphia to reopen the 2008 proceedings so that he could adjust his status in the event that DHS granted Thornton's pending I-130 petition. See 8 U.S.C. § 1255(i). He also moved to change venue from Philadelphia to Chicago. The government did not oppose either motion, and the IJ granted the motion to reopen and the motion to change venue in January 2012.
Ten days later DHS issued a Notice of Intent to Deny Thornton's I-130 petition because she had not shown by clear and convincing evidence that the marriage was bona fide and entered into in good faith. See 8 U.S.C. § § 1154(g), 1255(e)(2), (3). DHS pointed to inconsistent responses given by Souley and Thornton about details of their engagement and marriage ceremony, as well as Souley's apparent asthmatic condition. Further, Thornton provided very little documentary evidence regarding the relationship, supplying only a joint bank account statement and a lease agreement that listed her as the only tenant but bore Souley's signature. DHS also noted that eviction proceedings had been brought by Thornton's ...