May 24, 2016
for Review of an Order of the Board of Immigration Appeals.
No. A089 506 066
Rovner, Sykes, and Hamilton, Circuit Judges.
Hamilton, Circuit Judge.
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.
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).
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
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.
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.
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
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.
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