May 15, 2019
Petition for Review of an Order of the Board of Immigration
Appeals. No. A200-363-680.
WOOD, Chief Judge, and Easterbrook and Hamilton, Circuit
HAMILTON, CIRCUIT JUDGE.
issue in this petition for judicial review is whether the
immigration judge abused her discretion by denying a motion
to continue a removal hearing. Petitioner Yaya Toure concedes
he is removable. He sought to delay his hearing so that he
could belatedly seek lawful permanent residence based on his
brief marriage to a United States citizen, a marriage that
immigration authorities had investigated and found to have
been a sham. Denial of his request for a continuance was not
an abuse of discretion, so we deny the petition.
Facts & Procedural History
Toure was born in Cote D'lvoire and is a citizen of Mali.
He entered the United States on a tourist visa on January 6,
2007. On June 8, 2009, he married Latasha Wolfe, a United
States citizen. Conditional on his marriage, the United
States Citizen and Immigration Services ("USCIS")
granted Toure permanent resident status on December 17, 2009.
In September 2011, Toure and Wolfe filed a joint 1-751
petition to remove the conditions on residence pursuant to 8
U.S.C. § 1186a(c)(1). If granted, the joint petition
would have modified Toure's status so that his residence
in the United States would no longer have been contingent
upon his marriage to Wolfe.
considering that joint petition, USCIS interviewed Toure and
Wolfe. The agency issued a Notice of Intent to Deny the
petition because the marriage seemed to have been motivated
by immigration benefits. Toure and Wolfe lived in the same
city but were not living together. When they were asked basic
questions about each other's lives, their answers
conflicted directly. USCIS explained that the couple bore the
burden of proving the marriage was not entered into primarily
to obtain immigration benefits.
response, Toure submitted an affidavit asserting that his
marriage was bona fide, and Wolfe and Toure's
attorney also submitted letters saying the marriage was
legitimate. USCIS responded on March 15, 2013, finding that
the additional evidence was insufficient to rebut its initial
finding. After denying Toure's motion to reconsider, the
agency denied the joint 1-751 petition and terminated his
conditional permanent resident status pursuant to 8 U.S.C.
§ 1186a(b). On July 18, 2013, the Department of Homeland
Security ("DHS") served Toure with a Notice to
Appear, advising him that he was subject to removal from the
United States under 8 U.S.C. § 1227(a)(1)(D)(i).
March 12, 2014, Toure appeared before an immigration judge
for his master calendar hearing (a brief initial appearance
before an immigration judge to determine how the case will
proceed). Toure conceded he was removable as charged, but he
said that he and Wolfe were still married and that they both
intended to proceed with the joint filing, despite the
adverse finding by USCIS. He and his lawyer did not tell the
immigration judge, however, that he and Wolfe had actually
been separated for several months at that time. The
immigration judge set the merits hearing on the joint
petition for more than three years later, on August 16, 2017.
The judge instructed Toure that "if something changes,
for a waiver ... you have to file" a new petition with
USCIS. Toure's attorney assured the immigration judge
that he would submit the waiver to the immigration court if
Toure's status changed. The court also instructed Toure
and his lawyer that any additional filings needed to be
received by the court at least fifteen days before the
December 3, 2014, Toure and Wolfe divorced. The decree listed
the date of their separation as December 2, 2013, more than
three months before Toure's first appearance before the
immigration judge. Neither Toure nor his attorney informed
the immigration court of this change in status.
July 11, 2017, nearly two and a half years after his divorce
and only a month before the long-scheduled hearing on the
merits of his removal, Toure filed a new 1-751 petition, this
time requesting a waiver of the joint-filing requirement
pursuant to 8 U.S.C. § 1186a(c)(4)(B), which allows
waiver of the joint-filing requirement if the marriage has
ended in divorce. Not until the day of the scheduled merits
hearing, however, did Toure inform the immigration judge of
this new petition and request a continuance of the merits
hearing to allow USCIS time to adjudicate his new, solo 1-751
petition and waiver request. Immediately before the hearing,
counsel for DHS indicated to Toure's attorney that the
agency would consent to a continuance.
immigration judge, however, denied the oral motion to
continue, finding that Toure did not show good cause for the
continuance as required by 8 C.F.R. § 1003.29. The judge
rejected Toure's explanation for failing to disclose the
changes in his status in a timely manner or to request a
continuance fifteen days ahead of the hearing, as required.
Toure's counsel explained that he did not feel it was
important to tell the court about the separation since they
were not yet divorced and there was a chance they might
reconcile. The judge rejected this argument. Toure was
represented by the same attorney in both his immigration and
divorce proceedings, meaning counsel knew during the March
2014 hearing that the marriage-which USCIS had already deemed
a sham-was also in danger of ending very soon. The judge
stated her view that Toure needed to disclose this
information before the merits hearing. It also came to light
that Toure had had to serve the 2014 divorce decree on Wolfe
by publication. He did not know where she lived.
judge emphasized that Toure had three years between hearings
to notify the immigration court of his divorce, to submit a
waiver, or to request a continuance. Toure's attorney
tried to take the blame, explaining that the delay was due to
the length of time between hearings and that the failures to
take more timely action were "human error" because
he was a sole practitioner. The immigration judge found that
counsel's reasons did not demonstrate good cause and
denied the motion to continue. The immigration judge
explained that she did not have jurisdiction over Toure's
new 1-751 ...