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Giri v. Lynch

United States Court of Appeals, Seventh Circuit

July 17, 2015

PARASHU GIRI, Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States, Respondent

Argued December 2, 2014

Petition for Review of an Order of the Board of Immigration Appeals. No. A078-872-597.

For Parashu Giri, Petitioner: Sakina Carbide, Attorney, Chicago, IL.

For LORETTA E. LYNCH, Attorney General of the United States, Respondent: Jessica Eden Burns, Attorney, Joseph A. O'Connell, Attorney, OIL, Attorney, Department of Justice, Civil Division, Immigration Litigation, Washington, DC.

Before WOOD, Chief Judge, and WILLIAMS and TINDER, Circuit Judges.

OPINION

WILLIAMS, Circuit Judge.

Parashu Giri, a citizen of Nepal, was living in the United States as a conditional permanent resident based on his marriage to a U.S. citizen, Tammy Giri, until the United States Citizenship and Immigration Services (" USCIS" ) terminated his conditional resident status after finding that his marriage was entered into for the purpose of remaining in the United States. Removal proceedings commenced shortly thereafter. On the day of his merits hearing--after the court granted his request to advance the date of his merits hearing--Parashu[1] sought a continuance on the grounds that he had not been fingerprinted, as required, and was not able to timely submit documentation to support the validity of his marriage to his U.S. citizen spouse. The immigration judge (" IJ" ) denied the request finding that Parashu had ample time to get fingerprinted and submit his petition for relief and evidence supporting the bona fides of his marriage, but he was not diligent in completing these tasks. Because the IJ previously had found that Parashu conceded removability, and there were no additional matters pending before the IJ, the IJ ordered Parashu removed to Nepal. The Board of Immigration Appeals (" BIA" ) upheld the IJ's ruling. Parashu petitioned this court for review. Because the immigration courts provided a reasoned explanation for the IJ's decision not to grant a continuance that did not depart from established policies or rest on an impermissible basis and because the record indicates that Parashu conceded removability and was removable to Nepal, we deny the petition for review.

I. BACKGROUND

On April 29, 1998, Parashu Giri, a citizen of Nepal, lawfully entered the United States as a nonimmigrant visitor. In 2001, he married a U.S. citizen, Tammy Giri, and gained conditional permanent residence based on his marriage to Tammy. This was Parashu's second marriage.

In May 2003, Parashu and Tammy submitted a joint I-751 petition to remove the conditions of his permanent residence. USCIS denied the petition in February 2007 based on Parashu's and Tammy's failure to appear for the I-751 interview and a letter Tammy sent to USCIS in July 2003 withdrawing her support of the I-751 petition. In April 2007, Parashu and Tammy filed a second joint I-751 petition. On January 29, 2010, USCIS denied the petition finding that Parashu maintained a relationship with his first wife after their purported divorce in 1998, lived and had a child with his first wife during his marriage to Tammy, Parashu did not consistently live with his U.S. citizen spouse, and other evidence led to the conclusion that Parashu entered into the marriage with Tammy to avoid immigration laws. In February 2010, the Department of Homeland Security (" DHS" ) served Parashu with a notice to appear, which commenced removal proceedings.

Sakina Carbide, Parashu's counsel, refiled a motion for an individual hearing on October 21, 2010. (The immigration court rejected the initial motion packet, filed on September 8, 2010, because of a missing signature.) The motion packet contained the motion and a response to the notice to appear, among other documents. The motion for an individual hearing informed the court that Parashu and Tammy wished to renew their I-751 petition. But a copy of an I-751 petition was not included. The motion requested that the IJ schedule a merits hearing regarding the same as soon as possible. The response to the notice to appear, signed by Parashu, admitted almost all of the allegations in the notice to appear, specifically, that he: (1) is not a U.S. citizen, (2) is a citizen of Nepal, (3) was admitted to the United States on or about April 29, 1998, and (4) became a permanent resident on a conditional basis on July 31, 2001. He also admitted that his conditional status was terminated, but he denied that he was removable.

On October 21, 2010, by written order, the immigration court granted the motion for a merits hearing, finding that Parashu conceded removability. The order also stated that " The application(s) for relief must be filed by 45 days before next hearing" ; and Parashu must be fingerprinted " by 60 days before next hearing." The next day the immigration court issued a notice of hearing stating that Parashu's merits hearing would take place on July 25, 2012. On February 17, 2012 the court issued another notice rescheduling the merits hearing to August 23, 2012.

The immigration court held the merits hearing on August 23, 2012. Parashu appeared at the hearing with his counsel, Carbide, who had not yet entered an official appearance even though she had been representing Parashu in this matter since at least August 2010. She acknowledged that she failed to enter an appearance.

After discussing her failure to enter an appearance, counsel asked for a continuance based on the fact that Parashu had not been fingerprinted and that counsel was unable to timely submit the documentary evidence supporting the bona fides of Parashu's marriage, which was over 800 pages of documents illustrating the couple's twelve-year relationship and included a copy of the I-751 petition dated March 1, 2007. She stated that she had trouble getting an appointment for USCIS to fingerprint Parashu. She stated that over the past two years there had been difficulty trying to obtain the documentary evidence from Parashu to support the bona fides of the marriage, and that she just received the documents the previous afternoon. She admitted that her first meeting with Parashu to prepare his case occurred two ...


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