                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-17-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3945




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                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 06-3945


                                 MIROSLAV JACKO,
                                             Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                                    Respondent


                       On Petition for Review of an Order of the
                           Board of Immigration Appeals
                                 BIA No. A75-459-723
               (U.S. Immigration Judge: Honorable Rosalind K. Malloy)


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     May 5, 2008

      Before: SCIRICA, Chief Judge, BARRY and HARDIMAN, Circuit Judges.

                              (Filed: September 17, 2008)


                              OPINION OF THE COURT


SCIRICA, Chief Judge.

      Miroslav Jacko petitions for review of a final decision of the Board of Immigration

Appeals (BIA), affirming without opinion the decision of an immigration judge (IJ) in
removal proceedings against him. Jacko alleges the IJ abused her discretion by denying

Jacko’s request for a continuance of his removal proceedings, and that the BIA erred in

issuing an affirmance without opinion (AWO) of the IJ’s ruling. We will deny the

petition.1

                                              I.

         Jacko arrived in the United States from the Slovak Republic in 1997 on a non-

immigrant visitor visa. On October 10, 2001, the INS commenced removal proceedings

against him for overstaying his visa. After an initial 90-day continuance of his removal

hearing, Jacko requested a second continuance on March 5, 2002, so that he could attempt

to adjust his immigration status in accordance with the procedures of the Immigration and

Nationality Act (INA), 8 U.S.C. § 1255. He claimed to have an Alien Employment

Certification (ETA-750) pending with the Department of Labor (DOL) and the IJ granted

his continuance. Jacko’s removal proceedings were subsequently continued three more

times while he waited for DOL to process his employment certification. At a hearing on

February 3, 2004, Jacko claimed that his employment certification had been approved and

he had filed an I-140 visa petition with the Department of Homeland Security (DHS), the

next step in having his immigration status adjusted under § 1255. A sixth continuance

was granted to allow DHS to process the I-140 petition. At a hearing on February 1,

2005, Jacko conceded his I-140 petition had been denied by DHS and his appeal of the


   1
       We have jurisdiction under 8 U.S.C. § 1252.

                                              2
denial was pending. The IJ refused to grant him a further continuance pending the

resolution of his appeal and entered a removal order. Jacko appealed the order to the

BIA, contending the IJ had abused her discretion by denying him a further continuance.

On July 31, 2006, the BIA affirmed the IJ’s order without opinion.

      The issue is whether the IJ abused her discretion by denying Jacko’s request for a

continuance. The regulations implementing the INA bestow such discretion on the IJ,

stating “the immigration judge may grant a motion for continuance for good cause

shown.” 8 C.F.R. § 1003.29. But Jacko contends an IJ should grant a continuance when

an alien has the paperwork for a status adjustment pending under § 1255. For support,

Jacko cites Haswanee v. US Attorney General, 471 F.3d 1212 (11th Cir. 2006) and

Subhan v. Ashcroft, 383 F.3d 591 (7th Cir. 2004). In Haswanee, the Eleventh Circuit

overturned an immigration judge’s denial of a continuance on the grounds that the

petitioner had an unadjudicated I-140 petition pending before DHS at the time of the

continuance request. In Subhan, the Seventh Circuit came to a similar decision with

respect to a petitioner who had a continuance denied while his ETA-750 labor

certification was pending. We find these cases inapposite to the matter at hand. Jacko’s

visa petition had been denied by DHS at the time the IJ denied Jacko’s request for a

continuance, whereas in Haswanee and Subhan administrative agencies had yet to rule on

the petitioners’ applications when they sought a continuance of their removal

proceedings. The importance of this distinction is apparent from the Seventh Circuit’s



                                            3
reasoning in Subhan. That court held the IJ’s finding that Subhan was “not eligible” for

status adjustment “was not a reason for denying the motion for a third continuance, but

merely a statement of the obvious: that the labor departments hadn’t yet acted.” Subhan,

383 F.3d at 593. Although Jacko argues that, like the petitioners in Subhan and

Haswanee, he is simply a victim of administrative delay, he cannot make the claim that

“the labor departments hadn’t yet acted”.

       We find this difference crucial in evaluating whether the IJ abused her discretion.

In Subhan, the Seventh Circuit went on to mention several possible reasons that would

constitute a valid basis on which an IJ could exercise discretion to deny a continuance,

citing with approval its earlier decision in Hassan v. INS, 110 F.3d 490 (7th Cir. 1997), a

case in which the IJ refused a request for a continuance on the grounds that the alien’s

visa petition had been denied. 2 Thus, even in the case Jacko relies on, the court

acknowledged denial of a visa petition as a valid reason for an IJ to deny a continuance.

       BIA precedent also supports the conclusion that the IJ acted within her discretion.

In Matter of Garcia, 16 I&N Dec. 653 (BIA 1978), the BIA stated:

       [W]e believe that discretion should, as a general rule, be favorably
       exercised when a prima facie approvable visa petition . . . ha[s] been
       submitted in the course of a deportation hearing . . . It clearly would not be
       an abuse of discretion for the immigration judge to summarily deny a


   2
    Although the visa petition denied in Hassan was an I-130 immediate relative visa
petition, the court’s finding that “[b]ecause the District Director had already denied the
visa petition, that petition could not have been prima facie approvable,” is equally
relevant to an I-140 visa petition. Hassan, 110 F.3d 490, 492-493.

                                              4
       request for a continuance or a motion to reopen upon his determination that
       the visa petition is frivolous or that the adjustment application would be
       denied. . . .

Id. at 657. The above passage speaks to the latitude of discretion afforded to the IJ. In

this case, the IJ was not even required to make a determination as to the merits of the visa

petition, as it already had been denied when she considered Jacko’s motion for

continuance. Indeed, it would be hard to see how a visa petition could be considered

prima facie approvable having been denied once by DHS.

       Jacko also contends the IJ erred in basing her decision to deny the continuance in

part on the duration of the removal proceedings. Jacko argues that he “is unaware of any

law, regulation or precedent which requires or gives specific authority to an IJ to deny a

continuance on the basis that the court docket is too full, too many continuances have

been granted or that a case has been on the docket too long.” Petitioner’s Br. at 12. This

argument misconstrues 8 C.F.R. § 1003.29, which states that “the immigration judge may

grant a motion for continuance for good cause shown.” The subject of removal

proceedings has no inherent right to a continuance, but rather bears the burden of showing

good cause why a continuance should be granted. Furthermore, Jacko’s I-140 already had

been denied by DHS. We see no reason to believe that the duration of a removal

proceeding is not a permissible factor for an IJ to consider in connection with a

petitioner’s request for a continuance.




                                             5
                                             II.

       Jacko also asserts that the BIA improperly issued an affirmance without opinion

(AWO) of the IJ’s ruling. He argues that the circumstances of his case do not meet the

criteria for an AWO in 8 C.F.R. § 1003.1(e)(4). We disagree. Jacko contends “the AWO

process should…never be used when new arguments are raised for the first time in the

appeal to the board.” Petitioner’s Br. at 19. But the regulation allows the BIA to issue an

AWO as long as “the factual and legal issues raised on appeal are not so substantial that

the case warrants the issuance of a written opinion in the case.” 8 C.F.R. §

1003.1(e)(4)(i)(B). That an issue is new does not make it substantial. Jacko cites no

authority for his position on the AWO, but argues that “the legal issues are substantial in

their sheer volume.” Petitioner’s Br. at 23. We do not read the regulation as allowing any

particular volume of legal issues to dispositively determine substantiality. Such an

interpretation would unduly restrict the discretion of the BIA. We see no error.

                                           III.

       Finally, Jacko contends the denial of a continuance violates his due process rights,

specifically “the IJ’s erroneous procedural ruling (denial of a continuance request),

precluded Mr. Jacko from the opportunity to be heard on his application for relief from

removal.” Petitioner’s Br. at 25. As his removal proceedings have encompassed a total

of three years, six continuances and seven total hearings, and as we have found the denial




                                              6
of a continuance to be a proper exercise of the IJ’s discretion, we cannot agree that his

fundamental due process right to be heard has been impaired.

       For the foregoing reasons, we will deny the petition for review.




                                             7
