                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-12-2005

Li v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2407




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 04-2407


                                     SHU YING LI,
                                             Petitioner

                                            v.

                              *ALBERTO R. GONZALES,
                          Attorney General of the United States,
                                                       Respondent

                  (*Substituted pursuant to Rule 43(c), Fed. R. App. P.)


                  On Petition for Review of a Decision and Order of the
                              Board of Immigration Appeals
                                 (BIA No. A95-820-904)


                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  May 24, 2005
        Before: SCIRICA, Chief Judge, ALITO and RENDELL, Circuit Judges

                                  (Filed: July 12, 2005)


                               OPINION OF THE COURT


SCIRICA, Chief Judge.

       Shu Ying Li, a Chinese citizen who remained in the United States beyond the

expiration of her temporary visa, petitions for review of an order granting voluntary
departure. The Board of Immigration Appeals denied her motion to remand pending her

application for adjustment of status and dismissed her appeal. We will affirm.

                                      I. Background

       Petitioner Li entered the United States by way of a visitor visa on January 23,

2000. She was authorized to remain in the country for six months but stayed for nearly

three years, residing in Texas and New York until the Immigration and Naturalization

Service 1 apprehended her on December 4, 2002 and initiated removal proceedings.

       On December 24, 2002, Li appeared with an attorney before an Immigration

Judge, where she admitted all factual allegations and conceded removability. Li stated

she wished to apply for relief under the Convention Against Torture and, in the

alternative, for voluntary departure. The IJ continued the hearing until February 6, 2003,

to permit Li to file her application for relief. At the next hearing, Li appeared with a

different attorney and was granted another continuance of two weeks in order to submit

evidence in support of her application.

       On February 13, 2003, one week prior to the rescheduled hearing date, Li married

Thomas Rhodes, Jr., a U.S. citizen from Minnesota. At the subsequent hearing, on

February 20, Li was accompanied by an interpreter brought by her attorney. An official

court interpreter was not present. Li’s counsel withdrew her request to seek protection


   1
   Beginning on March 1, 2003, INS became a part of the Department of Homeland
Security pursuant to the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat.
2135 (Nov. 25, 2002).

                                              2
under the Convention Against Torture and announced Li’s intention, due to her recent

marriage, to apply for an immigrant visa and adjustment of status. The IJ denied Li’s

request to continue the proceedings pending adjudication of her application for

adjustment of status. The Immigration Judge then found Li to be removable and granted

voluntary departure for a period of 120 days, after which she would be removed to China.

Although Li waived her right to appeal, she nonetheless appealed, contending she never

requested voluntary departure—a contention predicated upon her argument that she was

not provided an interpreter by the court at the February 20 hearing. Despite the waiver,

the BIA entertained the appeal.

       While the appeal was pending, Li filed a motion with the BIA to remand the case

to allow Li to pursue an application for adjustment of status based on her recent marriage.

Li submitted affidavits and other evidence alleging the marriage was entered into in good

faith. The BIA denied her motion on the grounds that she had not established, with clear

and convincing evidence, a strong likelihood that her marriage was bona fide and that her

application on remand would be successful. In her petition for review, Li contends the IJ

and the BIA abused their discretion in denying her request for a continuance and her

motion to remand. Li also contends a denial of due process at the removal hearing due to

the absence of a court-provided interpreter.




                                               3
                       II. Jurisdiction and Standard of Review

       The BIA had jurisdiction under 8 C.F.R. §§ 1003.1(b)(3) and 1240.15. We have

jurisdiction under 8 U.S.C. § 1252. Our review of a due process claim arising from

removal proceedings is plenary. Abdulrahman v. Ashcroft, 330 F.3d 587, 595-96 (3d Cir.

2003); De Leon-Reynoso v. Ashcroft, 293 F.3d 633, 635 (3d Cir. 2002). We review the

BIA’s decision upholding the denial of a continuance for abuse of discretion. Ponce-

Leiva v. Ashcroft, 331 F.3d 369, 377 (3d Cir. 2003). Likewise, we review the BIA’s

denial of a motion to remand for abuse of discretion. Korytnyuk v. Ashcroft, 396 F.3d

272, 282-84 (3d Cir. 2005); Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d Cir. 2003).

                                      III. Analysis

A. Due Process

       Li contends her right to due process was violated because the court did not provide

an interpreter at her removal hearing. Li contends that because of this, she was unaware

that her attorney had withdrawn her request for protection under the Convention Against

Torture. But the record shows that Li’s attorney brought an interpreter to the removal

hearing and did not object to the absence of a court-provided interpreter. Furthermore,

Li’s attorney confirmed to the IJ that he had discussed the withdrawal of the Convention

Against Torture claim with Li in her native tongue—and Li does not dispute that these

attorney-client communications took place. It is well established that “clients must be

held accountable for the acts and omissions of their attorneys.” Pioneer Inv. Serv. Co. v.



                                             4
Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 396 (1993); see also Marcangelo v.

Boardwalk Regency, 47 F.3d 88, 90 (3d Cir. 1995). Here, in light of the fact that Li

discussed the torture claim with her attorney in her native dialect, and approved counsel’s

withdrawal of that claim, the proceeding was not rendered fundamentally unfair by the

absence of a court-appointed interpreter. Accordingly, we see no due process violation.

See United States v. Torres, 383 F.3d 92, 103-04 (3d Cir. 2004) (explaining that due

process violation in removal proceeding requires a showing of fundamental unfairness).

B. Continuance and Remand

       The Immigration Judge has wide discretion to grant or deny a continuance, and we

review the BIA’s decision to uphold the denial of a continuance for abuse of discretion.

Ponce-Leiva, 331 F.3d at 377. Li argues a continuance should have been granted pending

her application for adjustment of status. But an alien is not entitled to a stay of removal

proceedings simply because of a pending application for adjustment of status, unless the

alien can make out a prima facie case for adjustment. See 8 U.S.C. § 1255a(e)(2) (2004).

       An adjustment of status is authorized if, inter alia, “the alien is eligible to receive

an immigrant visa and is admissible to the United States for permanent residence, and . . .

an immigrant visa is immediately available to him at the time his application is filed.” 8

U.S.C. § 1255(a) (2004). If a marriage is entered into while removal proceedings are

pending, adjustment of status is only appropriate if “the alien establishes by clear and

convincing evidence . . . that the marriage was entered into in good faith . . . and was not



                                               5
entered into for the purpose of procuring the alien’s admission as an immigrant.” 8

U.S.C. § 1255(e) (2004). Furthermore, the BIA has held that a motion to reopen 2 the

proceeding—to provide the alien an opportunity to pursue an application for

adjustment—should be granted only when, inter alia, “the motion presents clear and

convincing evidence indicating a strong likelihood that the respondent’s marriage is bona

fide.” Matter of Velarde-Pacheco, 23 I. & N. Dec. 253, 256 (BIA 2002); see also Bhiski

v. Ashcroft, 373 F.3d 363, 371 (3d Cir. 2004).

       As noted, to be eligible for adjustment of status, there must be an immigrant visa

immediately available. Here, there was no visa immediately available, as Li did not have

an approved visa petition. In addition, Li was married while the removal proceeding was

pending, and she produced no evidence at her removal hearing to support the contention

that her marriage was bona fide. Given this lack of evidence, the IJ acted within his

discretion in refusing to continue proceedings indefinitely, pending the adjudication of

Li’s application for adjustment of status. See, e.g., Reynoso-Lopez v. Ashcroft, 369 F.3d

275, 284 (3d Cir. 2004) (noting that “having expeditious removal proceedings” is a

legitimate goal of the INS). Accordingly, the BIA did not abuse its discretion in

upholding the Immigration Judge’s denial of a continuance.


   2
    For the purpose of pursuing adjustment of status, a motion to remand is treated as a
motion to reopen. See, e.g., Korytnyuk v. Ashcroft, 396 F.3d at 282 (3d Cir. 2005)
(“[M]otions to remand filed while an appeal is pending before the BIA are essentially
motions to reopen denominated differently because no decision on the direct appeal exists
to be reopened.”).

                                             6
       Turning to Li’s motion for remand, the BIA found that she failed to provide clear

and convincing evidence of a bona fide marriage. Regulations concerning adjustment of

status specify the following as constituting adequate evidence for this purpose:

       (A) Documentation showing joint ownership of property;
       (B) Lease showing joint tenancy of a common residence;
       (C) Documentation showing commingling of financial resources;
       (D) Birth certificates of children born to the applicant and his or her spouse;
       (E) Affidavits of third parties having knowledge of the bona fides of the
       marital relationship, or
       (F) Other documentation establishing that the marriage was not entered into
       in order to evade the immigration laws of the United States.

8 C.F.R. § 1245.1(c)(9)(v). Li submitted to the Board brief affidavits from her and

Rhodes attesting to their marriage; the marriage license from the State of Minnesota; a

very short, unsworn statement from an acquaintance stating that he had observed the

couple together on a few occasions; and a small number of posed photos with her and

Rhodes in wedding attire. Li did not produce any additional evidence of the sort listed

above, and as respondent notes, nothing submitted by Li reveals how or when she met her

husband, given that he lived in Minnesota while she had never resided in Minnesota

following her arrival in the United States. As such, the BIA did not abuse its discretion

when it determined that Li failed to provide clear and convincing evidence of a bona fide

marriage, denied her motion to remand, and dismissed her appeal.

                                      IV. Conclusion

       For the foregoing reasons, we will affirm the order of the BIA, and we will deny

the petition for review.

                                              7
