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Cadavedo v. Lynch

United States Court of Appeals, Seventh Circuit

August 31, 2016

Ivan Mendoza Cadavedo, Petitioner,
Loretta E. Lynch, Attorney General of the United States, Respondent.

          Argued May 24, 2016

         Petition for Review of an Order of the Board of Immigration Appeals. No. A089 506 066

          Before Rovner, Sykes, and Hamilton, Circuit Judges.

          Hamilton, Circuit Judge.

         Ivan Mendoza Cadavedo, a native of the Philippines, petitions for review of a Board of Immigration Appeals decision that affirmed an immigration judge's denial of his request for a continuance. At a 2014 hearing, an immigration judge denied Cadavedo's request for a continuance to allow him to challenge a 2009 finding by United States Citizenship and Immigration Services ("USCIS") that he had engaged in marriage fraud. That USCIS finding bars him from obtaining adjustment of his status to become a lawful permanent resident. We hold that there was no abuse of discretion in denying Cadavedo's request for a continuance. Cadavedo made his request during the hearing he sought to have continued, and his entitlement to the belated relief he wanted to seek from USCIS is speculative at best.

         I. Background

         This case revolves around Cadavedo's past and possible future attempts to adjust his immigration status to become a lawful permanent resident. Unauthorized immigrants who have an immigrant visa immediately available to them (among other requirements) may apply to have their status adjusted to that of lawful permanent resident. 8 U.S.C. § 1255(a). There are no numerical limits on visas for immediate relatives of United States citizens, including spouses, so a visa is immediately available to such an immigrant. 8 U.S.C. § 1151(b)(2)(A)(i). To obtain this benefit, a United States citizen may petition for recognition of her relative's classification as an immigrant entitled to a visa. 8 U.S.C. § 1154(a)(1)(A)(i); 8 C.F.R. § 204.1(a)(1). The immigrant may then apply for adjustment of status. See generally Matter of Hashmi, 24 I. & N. Dec. 785, 789-90 (BIA 2009) (describing process for adjustment of status). If an immigrant attempts to obtain adjustment of status through a sham marriage, however, no future petition on behalf of that immigrant may be approved. 8 U.S.C. § 1154(c); see also 8 C.F.R. § 204.2(a)(1)(ii).

         In 2007, Cadavedo sought to adjust his status through his U.S. citizen wife. His wife filed an 1-130 petition for recognition of Cadavedo as her spouse, and Cadavedo filed a corresponding 1-485 petition to adjust his status to lawful permanent resident.

         Immigration authorities interviewed the two to establish whether their marriage was bona fide. In her interview, Ca-davedo's wife admitted that Cadavedo had promised to pay her to marry him for immigration purposes. She gave a sworn statement to USCIS and withdrew her 1-130 petition. USCIS denied Cadavedo's 1-485 petition to adjust his status. It notified Cadavedo that under 8 U.S.C. § 1154(c) it could not approve any future petitions on his behalf because he had entered into a marriage for the purpose of evading the immigration laws.[1]

         In 2012, the Department of Homeland Security issued a Notice to Appear to Cadavedo. The Notice to Appear charged Cadavedo with removability based on overstaying his visa, 8 U.S.C. § 1227(a)(1)(B), working without authorization, § 1227(a)(1)(C)(i), and fraudulently attempting to adjust his status through a spousal preference, §§ 1182(a)(6)(C)(i), 1227(a)(1)(A). On May 16, 2013, Cadavedo appeared before an immigration judge and admitted all of the Attorney General's factual allegations except for his marriage fraud, which he denied. The judge scheduled a hearing on the contested fraud charge for October 17, 2013.

         In the fall of 2013, Cadavedo retained new counsel. Cadavedo's new counsel sought to continue the October 17, 2013 hearing to develop his defense against the fraud charges of removability. The October 2013 federal government shutdown had the effect of granting a delay of several months, although the judge did not formally grant the continuance request.

         On January 29, 2014, Cadavedo again appeared before the immigration judge. The Attorney General's witness for the contested fraud charges did not appear for the hearing, so the Attorney General dropped that charge and proceeded on the other, uncontested grounds for removability. During the hearing, Cadavedo sought a continuance to give him an opportunity to bring a collateral challenge to USCIS's fraud finding from 2009. Cadavedo told the judge he had a daughter who was in the process of naturalizing, and he said he wanted to seek adjustment of status through her.

         The judge denied the request and ordered Cadavedo's removal on the uncontested grounds for removability. Cadavedo appealed the denial of the continuance to the Board of Immigration Appeals. The Board affirmed the judge's decision. It applied its precedent, Hashmi, 24 I. & N. Dec. at 790-92, and concluded that Cadavedo had failed to demonstrate good cause to continue his proceedings. The relief Cadavedo wanted to seek from USCIS was untimely, and his entitlement to receive it was speculative at best. The Board also found no deprivation of Cadavedo's due process rights.

         II. Analysis

         A. Scope ...

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