     Case: 12-60296       Document: 00512227153         Page: 1     Date Filed: 05/01/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            May 1, 2013

                                       No. 12-60296                        Lyle W. Cayce
                                                                                Clerk

ERIKA YAZMIN RODRIGUEZ,
also known as Erika Yasmin Rodriguez Garcia

                                                  Petitioner
v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL

                                                  Respondent



                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A096 761 567


Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
       An Immigration Judge (“IJ”) denied the Petitioner’s request for a
continuance of her immigration hearing because she was not eligible for an
adjustment of her alien status. The Board of Immigration Appeals dismissed her
ensuing appeal on the same grounds. Because the Petitioner was not
immediately eligible for an immigrant visa and could not adjust her alien
classification to one that was eligible for a visa, we find that the BIA did not


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
    Case: 12-60296     Document: 00512227153      Page: 2   Date Filed: 05/01/2013



                                  No. 12-60296

abuse its discretion in dismissing her appeal. We therefore DENY the petition
for review.
                                        I.
      The Petitioner, Erika Yazmin Rodriguez (“Rodriguez”), is a citizen of
Mexico who first entered the United States under a visitor visa in August 2004.
On January 25, 2007, Rodriguez, who was still present in the United States, was
charged as removable and ordered to appear before the Immigration Court. At
that time, the IJ granted Rodriguez a continuance so that she could seek an
adjustment of her immigration status and potentially obtain a visa. On February
20, 2007, Rodriguez’s father, a lawful permanent resident of the United States,
filed an I-130 visa petition for an alien relative on her behalf. During the time
that Rodriguez’s petition was pending, the IJ granted a series of continuances
so that her petition could be processed. After an agency processing delay of 842
days, Rodriguez’s petition was finally approved on June 11, 2009.
      Despite having her visa petition approved, Rodriguez was not able to
immediately qualify for a visa because of the long visa waiting period for certain
aliens with approved visa petitions. Visa waiting periods are determined by the
Department of Homeland Security (“DHS”) based on an alien’s familial
relationship to a U.S. citizen or resident and the date on which the alien applies
for her visa, or her “priority date.” See 8 U.S.C. § 1153(a). The DHS regulates the
number of visas issued by periodically revising the current visa eligibility date
for each class of aliens; only aliens with priority dates prior to the current
eligibility date are immediately eligible for a visa.
      On May 4, 2010, Rodriguez appeared before the IJ and requested another
continuance so that she might obtain a visa. As the child under 21 of a lawful
permanent resident, visas were only available to aliens with priority dates
earlier than June 1, 2005. However, Rodriguez’s priority date was February 20,
2007, the date on which her father filed her visa petition. As a result, Rodriguez

                                        2
     Case: 12-60296        Document: 00512227153          Page: 3     Date Filed: 05/01/2013



                                        No. 12-60296

sought more time so that her visa priority date might become eligible.
Alternatively, she sought more time so that her father could take his
naturalization exam and acquire U.S. citizenship. Once reclassified as the
unmarried child under 21 of a U.S. citizen, Rodriguez would not be subject to
waiting periods and could immediately obtain a visa.
       The IJ denied Rodriguez’s motion for a continuance, finding that she was
not immediately eligible for a visa. Assuming an approximate day-by-day
progression of the visa waiting list, the IJ found that Rodriguez would probably
not be eligible for a visa for about 20 months. Moreover, the IJ found that even
if her father naturalized, Rodriguez would not be immediately entitled to a visa
because she would no longer qualify as a child under 21.1 Having determined
that Rodriguez would probably not qualify for a visa for a substantial period of
time, the IJ denied the continuance.
       Rodriguez appealed the IJ’s decision to the Board of Immigration Appeals
(“BIA”), which found that the IJ did not abuse his discretion in denying a
continuance. Agreeing that Rodriguez had failed to demonstrate that she could
immediately obtain a visa either with her current alien classification or by her
father’s expected naturalization, the BIA dismissed her appeal.
                                               II.
       On appeal from the BIA, we review questions of law de novo and the BIA’s
factual findings for substantial evidence, meaning that “this court may not
overturn the BIA’s factual findings unless the evidence compels a contrary
conclusion.” Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009). We
review discretionary decisions, such as the denial of a continuance, for abuse of
discretion. Masih v. Mukasey, 536 F.3d 370, 373 (5th Cir. 2008). We will consider


       1
          Once reclassified as an adult daughter of a U.S. citizen, Rodriguez would maintain
her priority date of February 20, 2007, but the current visa eligibility date for adult daughters
of citizens at the time of the immigration hearing was October 15, 1992.

                                               3
    Case: 12-60296     Document: 00512227153       Page: 4   Date Filed: 05/01/2013



                                   No. 12-60296

the underlying decision of the IJ to the extent it influenced the determination of
the BIA. Id.
                                        III.
      Our consideration of this petition for review is limited to whether the
BIA’s denial of a continuance constituted an abuse of discretion. According to the
Immigration Court’s procedural rules, an IJ may grant a motion for a
continuance for “good cause shown.” 8 C.F.R. § 1003.29. Under this “good cause”
standard, the BIA’s decision to deny a continuance is ordinarily within its sound
discretion. See Witter v. INS, 113 F.3d 549, 555 (5th Cir. 1997). The BIA has not
abused its discretion so long as its decision “is not capricious, racially invidious,
utterly without foundation in the evidence, or otherwise so aberrational that it
is arbitrary rather than the result of any perceptible rational approach. The BIA
acts arbitrarily when it disregards its own precedents and policies without giving
a reasonable explanation for doing so.” Cabral v. Holder, 632 F.3d 886, 890 (5th
Cir. 2011) (quoting Galvez–Vergara v. Gonzales, 484 F.3d 798, 801 (5th Cir.
2007)).
      As the BIA has stated, the only general limitation governing an
administrative immigration hearing is that it must be “fundamentally fair.”
Matter of Sibrun, 18 I. & N. Dec. 354, 356 (BIA 1983). In the context of a denied
request for a continuance, the BIA has required proof of two factors to establish
fundamental unfairness: (1) a showing that despite the good faith efforts of the
alien, she was deprived of some important opportunity, and (2) a showing that
the denial caused her “actual prejudice and harm and materially affected the
outcome of [her] case.” Id. at 356–57. As this court has recognized, the
requirement of fundamental fairness is essentially a mandate of procedural due
process, the essence of which is “notice and a fair opportunity to be heard.” See
United States v. Villanueva-Diaz, 634 F.3d 844, 850 (5th Cir. 2011). We therefore
consider whether the denial of Rodriguez’s request for a continuance

                                         4
    Case: 12-60296     Document: 00512227153        Page: 5   Date Filed: 05/01/2013



                                  No. 12-60296

prejudicially deprived her of the opportunity to present evidence or an argument
important to her case.
      Rodriguez’s complaint arises from the IJ’s decision to deny her a
continuance at an immigration proceeding whereby she sought to adjust her
alien status. If she were able to adjust her alien status, she would no longer have
been subject to removal from the United States. The relevant statute provides
that an alien may seek adjustment of her status “if (1) the alien makes an
application for such adjustment, (2) the alien is eligible to receive an immigrant
visa and is admissible to the United States for permanent residence, and (3) an
immigrant visa is immediately available to him at the time his application is
filed.” 8 U.S.C. § 1255(a). At Rodriguez’s hearing, the IJ determined that
Rodriguez failed to satisfy the third requirement for alien status adjustment:
There was no immigrant visa “immediately available to [her] at the time [her]
application [wa]s filed.” See 8 U.S.C. § 1255(a).
                                        A.
      Conceding that no visa was immediately available at the time of her
application, Rodriguez first argues that she nonetheless should have been
granted a continuance to permit her time to become eligible for a visa. Rodriguez
emphasizes the fact that she became eligible for a visa within seven months of
the IJ’s decision.
      However, Rodriguez ignores the fact that at the time of her request for a
continuance, the IJ could not have predicted the availability of a visa within
seven months. In fact, at the time of the IJ’s decision, Rodriguez’s priority date
was 20 months after the current eligibility date, suggesting an approximate
delay of 20 months before she could obtain a visa. See 8 U.S.C. § 1252(b)(4)(A)
(“[T]he court of appeals shall decide the petition only on the administrative
record on which the order of removal is based.”).



                                        5
     Case: 12-60296        Document: 00512227153           Page: 6     Date Filed: 05/01/2013



                                        No. 12-60296

       More importantly, Rodriguez ignores the legal requirements for her
request. The law is clear that she could not adjust her alien status because no
visa was immediately available to her. See 8 U.S.C. § 1255(a). Rodriguez’s
argument thus amounts to a complaint that the IJ should have given her an
indefinite extension of time to achieve compliance with the statute. However,
this is not the type of situation which implicates concerns of “fundamental
fairness” and the chance to present a full and fair case. Rodriguez’s problem was
not an inadequate opportunity to prepare her case and present available
arguments, but her inability to comply with the requirements of a governing
statute.2 Having granted Rodriguez four continuances already, it was not
fundamentally unfair to hold her to the visa requirement of § 1255(a). See
Ahmed v. Gonzales, 447 F.3d 433, 438 (5th Cir. 2006) (concluding that the
petitioner seeking a continuance lacked good cause because he was statutorily
ineligible for adjustment of status). Cases from our sister circuits confirm that
this is not an unusual holding.3
                                               B.



       2
          The availability of a visa for aliens with Rodriguez’s alleged classification—children
of lawful permanent residents—is determined by the “priority date” of the alien’s original visa
petition. At the time of Rodriguez’s hearing, her priority date was February 20, 2007, but visa
eligibility only extended to aliens with priority dates of June 1, 2005 or earlier.
       3
          See, e.g., Matter of Quintero, 18 I. & N. Dec. 348, 350 (BIA 1982) (“[T]he fact that the
respondent has an approved visa petition does not entitle him to delay the completion of
deportation proceedings pending availability of a visa number.”); Luevano v. Holder, 660 F.3d
1207, 1215 (10th Cir. 2011) (“Although the agency cases permit, and may even require, an IJ
to continue proceedings in order to await mere processing of a properly filed visa petition with
a current priority date, there is no agency or court precedent for requiring an IJ to grant an
indefinite continuance so that a petitioner may remain in this country while awaiting
eligibility for adjustment of status.”); Chacku v. U.S. Att’y Gen., 555 F.3d 1281, 1286 (11th Cir.
2008) (same); Singh v. Att’y Gen. of U.S., 399 Fed. App’x 769, 772 (3d Cir. 2010) (same); see
also Juarez v. Holder, 599 F.3d 560, 566 (7th Cir. 2010) (“Once removal proceedings have
begun, the immigration judge has an obligation to resolve them in a ‘timely and impartial’
manner, 8 C.F.R. § 1003.10, and applicants for relief have an obligation to comply with the
statutory and regulatory prerequisites for relief.”).

                                                6
     Case: 12-60296       Document: 00512227153          Page: 7     Date Filed: 05/01/2013



                                       No. 12-60296

       Rodriguez alternatively argues that a visa was “immediately available” to
her within the meaning of § 1255(a) by virtue of an impending change in her
father’s immigration status. Specifically, Rodriguez contends that her father was
scheduled to re-take the citizenship exam at the time of her hearing.4 Assuming
Rodriguez’s father could have passed the exam, he would become a U.S. citizen,
and would have been entitled to file a preferential visa petition on Rodriguez’s
behalf. Once Rodriguez is reclassified as the child of a U.S. citizen, she contends
that a visa would be immediately available to her.
       However, Rodriguez’s reliance upon an “imminent” change in her father’s
immigration status depends upon crediting a chain of conclusory assumptions
not supported by any caselaw. Even assuming that Rodriguez would have been
immediately entitled to a visa upon her father’s citizenship, her father was not
a citizen at the time of the hearing nor was it apparent that his citizenship was
certain. Although we have reasoned that a continuance should be granted in
certain circumstances where a valid visa petition awaits only a bureaucratic
stamp, this is not such a case.5 The fact that Rodriguez’s father may have
registered to re-take his citizenship exam does not lead inexorably to the
conclusion that he will become a citizen. He admittedly failed the exam already;
and to become a citizen, he must also pass a background check, an immigration
officer must approve his application, he must take an oath of allegiance and


       4
         Rodriguez contends that her father had previously attempted to take the citizenship
exam in English but failed. At the time of Rodriguez’s hearing, he was allegedly scheduled to
re-take the exam in Spanish.
       5
         See, e.g., Wu v. Holder, 571 F.3d 467, 468–69 (5th Cir. 2009); Matter of Hashmi, 24 I.
& N. Dec. 785, 788 (BIA 2009) (“[D]iscretion should be favorably exercised where a prima facie
approvable visa petition and adjustment application have been submitted . . . .”) (quoting
Matter of Garcia, 16 I&N Dec. 653, 657 (BIA 1978)). Unlike the instant case, those cases
concerned aliens whose only remaining hurdle to obtaining a valid visa was agency processing
of the application. See also Garcia, 16 I. & N. Dec. at 656–57 (BIA 1978). But see Ferreira v.
U.S. Att’y Gen., No. 11-14074, 2013 WL 1566636, p. *3 (11th Cir. Apr. 16, 2013) (interpreting
Hashmi to apply to all alien requests for a continuance).

                                              7
     Case: 12-60296       Document: 00512227153          Page: 8     Date Filed: 05/01/2013



                                       No. 12-60296

renunciation, and he must meet residency and literacy requirements. See 8
U.S.C. §§ 1445–46, 1448. None of these requirements are mere formalities, as
courts have not hesitated to treat individuals who fail to become fully
naturalized as aliens subject to deportation.6
       The cases that we have found with similar facts bolster this conclusion.
In Iqbal Ali v. Gonzales, the Seventh Circuit considered whether it was proper
to deny a continuance when the only evidence of a relative’s impending
citizenship was a prior failed attempt to naturalize. 502 F.3d 659, 665 (7th Cir.
2007). The court found that without more certainty, the IJ was not required to
allow an alien’s relative additional time to obtain citizenship. Id. In In re Samuel
Owusu Jr., A095-329-362, 2010 WL 4822958, p. *1 (BIA Nov. 8, 2010)
(unpublished), the BIA considered the identical argument of a visa applicant
who was denied a continuance he sought so his wife could obtain citizenship. Id.
The visa applicant’s wife had just passed the citizenship test and interview, but
she had not yet sworn an oath of allegiance. Id. Because the alien had not offered
proof that his wife’s impending citizenship was certain, the BIA found that it
was not an abuse of discretion to deny the alien a continuance. Id. In
Hasarafally v. United States, Nos. 10-Civ-3457-SAS, S1-050CR-401 (MBM), 2012
WL 6107685, p. *9 (S.D.N.Y. Dec. 10, 2012), a federal district court found that
even though an immigrant had passed the citizenship exam and lived in the
United States since he was fourteen, “it does not follow that [he] thereby became
a United States citizen. For example, [he] does not claim that: an Immigration
and Citizenship Services officer has determined that his citizenship application


       6
         See Oakfor v. Gonzales, 456 F.3d 531, 533–34 (5th Cir. 2006) (failure to take oath of
allegiance at public ceremony precludes citizenship); Tovar-Alvarez v. U.S. Att’y Gen., 427 F.3d
1350, 1351–52 (11th Cir. 2005) (same); see also Perdomo-Padilla v. Ashcroft, 333 F.3d 964, 969
(9th Cir. 2003) (naturalization statute “makes no provision for the attainment of nationality
short of full naturalization”); Salim v. Ashcroft, 350 F.3d 307,310 (3d Cir. 2003) (“[N]othing
less than citizenship will show ‘permanent allegiance to the United States.’”).

                                               8
     Case: 12-60296       Document: 00512227153         Page: 9     Date Filed: 05/01/2013



                                       No. 12-60296

should be granted; [or] that he took the oath of renunciation and allegiance.” Id.
The court thus found him subject to deportation as an alien. Id.
       Because Rodriguez’s father’s citizenship status was neither certain nor
imminent, we conclude that she has not shown that a visa is immediately
available to her. Accordingly, the IJ did not abuse his discretion in denying a
continuance on this ground.
                                             C.
       Rodriguez finally argues that a visa was immediately available to her by
virtue of her entitlement to a prioritized alien status under the Child Status
Protection Act (“CSPA”) (codified as 8 U.S.C. § 1153(h)(1)(A)). Congress enacted
the CSPA to allow the children of visa applicants to maintain their preferential
status as children under age 21 in certain cases even though they might be older
than 21 by the time their visa petition is approved. Khalid v. Holder, 655 F.3d
363, 367 (5th Cir. 2011). Specifically, the “CSPA provides an age formula that
allows for an adjustment to the alien’s biological age to account for agency delay
in processing the petition.” Id. at 368 (citations omitted). If Rodriguez is
permitted to qualify as a child under the CSPA, she contends that she will be
able to utilize an earlier priority date, thus immediately entitling her to an
available visa.
       The CSPA provides that a determination of whether an alien qualifies as
a child under age 21 is made by using “the age of the alien on the date on which
an immigrant visa number becomes available,” reduced by “the number of days
in the period during which the applicable petition . . . was pending.” 8 U.S.C. §
1153(h)(1)(A–B). Rodriguez, who was born on September 23, 1986, was 24 years
and 251 days old at the time she finally obtained an immigrant visa (June
2011).7 Subtracting the 842 days which Rodriguez’s petition was pending yields

       7
         Because specific dates have not been provided in some cases, we have assumed the
earliest possible date in a referenced time period so as to construe any ambiguity in favor of

                                              9
    Case: 12-60296       Document: 00512227153          Page: 10     Date Filed: 05/01/2013



                                       No. 12-60296

a CSPA age of 22 years and 139 days.8 Because Rodriguez cannot derive a CSPA
age under 21, she cannot qualify as a child, utilize an earlier priority date, or
immediately obtain a visa. The BIA did not abuse its discretion by concluding
that Rodriguez was not entitled to a continuance by virtue of the CSPA.
                                             IV.
       For the foregoing reasons, we find that the BIA did not abuse its discretion
in dismissing Rodriguez’s appeal. The petition for review is DENIED.




Rodriguez.
       8
        Rodriguez also suggests in her brief that the appropriate visa availability date was
the date on which her priority date first became eligible, November 2010, although she
apparently did not actually obtain a visa on that date. Even assuming the propriety of using
that date and reducing it by the applicable 842-day visa pending period, Rodriguez would still
have a CSPA age of 21 years and 293 days. Thus, Rodriguez is unable to derive a CSPA age
below 21 in any event.

                                             10
