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Toure v. Barr

United States Court of Appeals, Seventh Circuit

June 7, 2019

Yaya Toure, Petitioner,
William P. Barr, Attorney General of the United States, Respondent.

          Argued May 15, 2019

          Petition for Review of an Order of the Board of Immigration Appeals. No. A200-363-680.

          Before WOOD, Chief Judge, and Easterbrook and Hamilton, Circuit Judges.


         The 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.

         I. Facts & Procedural History

         Yaya 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.

         In 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.

         In 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).

         On 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 scheduled hearing.

         On 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.

          On 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.

         The 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.

          The 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 ...

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