                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-27-2009

Jorge Benavides-Guzm v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2992




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                                                                NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 08-2992
                                       ___________

                            JORGE BENAVIDES-GUZMAN,
                                        Petitioner

                                             v.

                  ATTORNEY GENERAL OF THE UNITED STATES
                        ___________________________

                          Petition for Review of an Order of the
                           United States Department of Justice
                              Board of Immigration Appeals
                                (Agency No. A75-967-620)
                           Immigration Judge: Annie S. Garcy
                             __________________________

                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    January 6, 2008

            Before: RENDELL, FUENTES and NYGAARD, Circuit Judges

                                 (Filed: January 27, 2009)
                                       ___________

                               OPINION OF THE COURT
                                    ___________

PER CURIAM

       Petitioner Jorge Benavides-Guzman, a native and citizen of Bolivia, was admitted

into the United States on July 6, 1996 as a visitor with authorization to remain until

August 30, 1996. A Notice To Appear was filed in Immigration Court on September 19,
2003, which alleged that he was removable under Immigration & Nationality Act (“INA”)

§ 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), as an alien who failed to depart prior to the

expiration of his authorized stay. Insofar as Benavides-Guzman had married a United

States citizen on March 19, 1997, he, through counsel, sought and received a continuance

from the Immigration Judge in order for his wife to file an alien relative visa petition and

adjustment of status application. The first such petition was denied; a second visa

petition was filed on March 15, 2004. On October 30, 2006, his wife’s second visa

petition was denied by the District Director for the United States Citizenship and

Immigration Services (“USCIS”) on the ground that the couple did not share a common

life together. The District Director’s decision notes 19 serious discrepancies in the

couple’s interview statements. When the couple was confronted with the discrepancies,

they could offer no convincing explanation for their contradictory answers. The District

Director concluded that the marriage was strictly for Benavides-Guzman to procure

permanent residence in the United States “since a couple engaged in a bonafide marital

relationship would never have had such discrepancies regarding not only their home but

also their activities as a couple.” A.R. 108.

       Benavides-Guzman appeared before the IJ with his counsel on November 20,

2006.1 He admitted the factual allegations and conceded removability, but, in seeking




  1
   The transcript in the Administrative Record apparently is incorrectly dated July 27,
2004.

                                                2
another continuance, he testified that his wife gave inconsistent answers at her adjustment

of status interviews because she is a drug addict. Her drug problem had been ongoing

throughout their ten year marriage. He blamed his wife’s poor memory and inaccurate

testimony at the interview on “all the things that happened to her.” A.R. 90.

Furthermore, his wife was 5 weeks pregnant and the pregnancy was evidence that the

marriage was bonafide. Therefore, if he could have another continuance he would seek

reconsideration with the District Director regarding the denial of the visa petition.

         After consideration of the record evidence and testimony, on that same day, the IJ

denied any further continuances and ordered Benavides-Guzman removed to Bolivia.2

His application for voluntary departure was granted. The IJ noted that Benavides-

Guzman’s wife had not yet appealed the District Director’s decision denying the visa

petition, notwithstanding the request for a postponement of removal proceedings.

Nevertheless, the IJ considered the request to continue the case in order to allow

Benavides-Guzman’s counsel to approach USCIS to ask it to reopen or reconsider its

denial of the visa petition. The IJ also considered Benavides-Guzman’s stated hope that

the pregnancy would change matters in the couple’s relationship, and considered that his

wife might have trouble with her memory due to her substance abuse problem. However,

the IJ ultimately concluded that good cause did not exist to continue the removal

proceedings. The IJ pointed out that Benavides-Guzman’s wife had not appeared at the


  2
      The IJ’s written decision apparently is also incorrectly dated July 27, 2004.

                                               3
hearing on the motion to postpone, and had not communicated with the Immigration

Court concerning her desires or intentions surrounding the visa petition. Furthermore, she

had not made any movement toward filing an appeal from the visa petition. There thus

was insufficient evidence to establish that additional efforts would be made to prosecute a

visa petition on Benavides-Guzman’s behalf, and consequently a lack of good cause

shown to justify further continuance.

       Benavides-Guzman appealed, with the assistance of counsel, to the Board of

Immigration Appeals, contending that the IJ abused her discretion and violated his right

to due process by denying his request for a continuance. In a decision dated June 11,

2008, the Board affirmed without opinion, 8 C.F.R. § 1003.1(e)(4). Benavides-Guzman

has timely petitioned for review pro se.

       We will deny the petition for review. Our authority to review a final removal order

of the Board arises under INA § 242(a), 8 U.S.C. § 1252(a). Benavides-Guzman

contends that the IJ abused her discretion and violated his right to due process by denying

him a continuance so that his wife could appeal the denial of her relative petition filed

on his behalf, and thus attempt to qualify him for adjustment of status. He contends that

he met the requirements for postponement and that his now twelve year marriage is

bonafide.

       When the Board summarily affirms and defers to an IJ’s decision, we review the

IJ’s decision to assess whether the Board’s decision to defer was appropriate. See



                                              4
Abdulai v. Ashcroft, 239 F.3d 542, 549 n.2 (3d Cir. 2001). An IJ "may grant a motion for

continuance for good cause shown." 8 C.F.R. § 1003.29. In Khan v. U.S. Attorney Gen.,

448 F.3d 226 (3d Cir. 2006), we held that we have jurisdiction to review the denial of a

continuance because denials of motions to continue are not statutorily-proscribed

discretionary acts. Id. at 231 (internal quotations and citation removed). We review the

denial of a continuance for abuse of discretion. See Ponce-Leiva v. Ashcroft, 331 F.3d

369, 377 (3d Cir. 2003). We exercise plenary review over procedural due process claims.

See Singh v. Gonzales, 432 F.3d 533, 541 (3d Cir. 2006); Bonhometre v. Gonzales, 414

F.3d 442, 446 (3d Cir. 2005).

       We conclude that the IJ did not abuse her discretion in denying the motion for

postponement, nor was Benavides-Guzman’s right to due process violated. An IJ’s

discretion to continue a hearing should be favorably exercised where a prima facie

approvable visa petition has yet to be approved and a prima facie approvable adjustment

of status has been submitted, see Matter of Garcia, 16 I. & N. Dec. 653, 656-57 (BIA

1978), modified on other grounds by Matter of Arthur, 20 I. & N. Dec. 475 (BIA 1992)

(addressing marriages that were entered into after commencement of removal

proceedings), but the alien must have a visa immediately available to him, INA § 245(a),

8 U.S.C. § 1255(a). Benavides-Guzman did not have an approved visa petition and no

visa was immediately available to him because his wife’s visa petition was denied. The IJ

had discretion to deny any request for a continuance on this basis, see Khan, 448 F.3d at



                                            5
234-35 (citing Onyeme v. Immigration & Naturalization Serv., 146 F.3d 227, 234 (4th

Cir. 1998)). Benavides-Guzman is presently ineligible for an immigrant visa, and he

cannot show that one will be available to him at some estimable time in the future. Id.

       Furthermore, prior to the denial of his wife’s petition, the IJ granted continuances,

and in denying any further continuances, she explained her reasons in detail and throughly

considered Benavides-Guzman’s claims. There was, as the IJ concluded, a lack of good

cause shown to justify any further delay. In evaluating any request for an adjournment or

continuance, the IJ could reasonably have relied on the decision by the District Director

denying the relative petition without speculating about whether an appeal of the decision

would have arguable merit. Cf. Khan, 448 F.3d at 235 (when all that petitioner offers is

speculative possibility that at some future point he may receive labor certification, he has

failed to demonstrate that he has a visa petition immediately available to him).

       Finally, although aliens facing removal are entitled to due process, see Kamara

v. U.S. Attorney Gen., 420 F.3d 202, 211 (3d Cir. 2005), what is required is that an alien

be provided with a full and fair hearing and a reasonable opportunity to present evidence,

see Singh v. Gonzales, 432 F.3d 533, 541 (3d Cir. 2006). We have carefully reviewed the

record and conclude that Benavides-Guzman was provided such an opportunity. His due

process argument “merely recasts his abuse-of-discretion argument ... and can be denied

for the reasons already stated.” Khan, 448 F.3d at 236. Benavides-Guzman cannot show

that he has been prejudiced by the IJ's denial of his postponement motion because there is



                                              6
no evidence as to when, if ever, the denial of his wife’s visa petition might be appealed,

let alone reversed. See Singh, 432 F.3d at 541 (to prevail on due process claim alien must

show substantial prejudice).

       We will deny the petition for review.




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