                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0753n.06
                           Filed: December 10, 2008

                                           No. 07-3625

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


LILJANA GJELUCI, ALBERT GJELUCI, KLAUDIO                 )
GJELUCI, and ANGJELA GJELUCI,                            )
                                                         )
       Petitioners,                                      )
                                                         )         ON PETITION FOR REVIEW
v.                                                       )         FROM AN ORDER OF THE
                                                         )         BOARD OF IMMIGRATION
MICHAEL B. MUKASEY, Attorney General,                    )         APPEALS
                                                         )
       Respondent.                                       )




BEFORE:        MARTIN and McKEAGUE, Circuit Judges; and COLLIER, Chief District
               Judge.*

       McKEAGUE, Circuit Judge. The Petitioners sought asylum in the United States of

America. After granting several continuances of their hearing, the Immigration Judge (“IJ”) assigned

to the Petitioners’ application denied their request for another continuance.        The Board of

Immigration Appeals (“BIA”) affirmed the IJ’s ruling. On petition for review, we find that the BIA

did not abuse its discretion, and, accordingly, we deny the petition.



                                                 I




       *
       The Honorable Curtis L. Collier, Chief United States District Judge for the Eastern District
of Tennessee, sitting by designation.
No. 07-3625
Gjeluci v. Mukasey

       The Petitioners, Liljana Gjeluci and her children, are natives and citizens of Albania who

sought asylum in this country. Liljana and her husband, Albert, filed separate applications for

asylum, withholding of removal, and protection under the United Nations Convention Against

Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”). The petition

for review before us involves only Liljana Gjeluci’s application filed on behalf of herself and her

children.

       At the master hearing in March 2003, Gjeluci admitted the factual allegations contained in

the notice to appear and conceded removability. The IJ informed Gjeluci that there was a question

about the authenticity of various documents submitted in support of the asylum application. The IJ

set the next hearing for June 28, 2004.

       On May 28, 2004, Gjeluci moved for a continuance. Because her husband had been granted

asylum in August 2003, she and her children sought refugee/asylee status in connection with her

husband’s asylum status. Gjeluci asserted that it would be likely that she and her children would be

accorded asylee status and would be eligible to have the removal action against them terminated.

The IJ granted the motion and set the hearing for August 3, 2005.

       On July 15, 2005, Gjeluci moved for a second continuance. She was still waiting to hear on

her request for asylee status under her husband’s grant of asylum, and had filed a mandamus action

in federal court to order that the matter be adjudicated. She also indicated, however, that the

government had questioned the authenticity of two medical documents submitted in support of both

her and her husband’s asylum applications, and that she had received a report about the documents

from the U.S. consular investigator on June 20, 2005. She explained that she was taking steps to

                                               -2-
No. 07-3625
Gjeluci v. Mukasey

have the medical documents and the information contained therein verified; however, that

verification would not be available by the August hearing date. In another motion filed nine days

later, Gjeluci further noted that the Chicago Asylum Office had issued an intent to revoke Albert’s

asylum as a result of the investigator’s report about the medical documents.1 The IJ granted a

continuance and set the hearing for December 2, 2005.

       At the December 2, 2005, hearing, the IJ initially asked whether authenticated documents had

been submitted in support of Gjeluci’s application. Gjeluci’s legal counsel indicated that the

documents had been sent to the Chicago Asylum Office in connection with Albert’s revocation

proceeding in August 2005 and that office still had possession of the documents. Counsel asked that

the IJ grant a continuance until Albert’s matter was resolved.

       The IJ denied the request for a continuance. The IJ noted that the hearing had been delayed

several times, that Gjeluci’s counsel did not have any information about when Albert’s case would

likely be resolved, and that the government was ready to proceed. The IJ further noted that Gjeluci’s

counsel had ample notice of the necessity of submitting authenticated documents in support of the

asylum application. Moreover, Gjeluci’s counsel had failed to follow local rules requiring that any

motion for continuance be made in writing and at least fourteen days before the hearing. The IJ

concluded that there were no extraordinary or unusual circumstances justifying another continuance.




       1
           The status of that action is not in the record before us.

                                                   -3-
No. 07-3625
Gjeluci v. Mukasey

       Faced with the prospect of going forward with the hearing and the possibility of a frivolous-

filing finding, Gjeluci withdrew the application.2 She instead appealed the denial of a continuance

to the BIA. The BIA dismissed the appeal, adopting and affirming the IJ’s decision. The BIA

further explained, “We have considered the respondents’ contentions on appeal but we agree with

the Immigration Judge’s finding that the respondents’ request for a continuance is correctly denied

for the reasons stated in the Immigration Judge’s thorough decision on this issue.” In re: Liljana

Gjeluci et al., Nos. A95-149-215, -216, -217, -218, order at 1 (BIA May 2, 2007).

       Gjeluci now petitions this court for review of the BIA’s decision.



                                                II

       When the BIA adopts the IJ’s reasoning as its own, but makes an additional comment, we

“directly review the decision of the IJ” as the BIA’s own, “while [also] considering the additional

comment made by the BIA.” Gilaj v. Gonzales, 408 F.3d 275, 283 (6th Cir. 2005). Here, the

comment by the BIA simply reiterates its agreement with the IJ’s analysis, so we focus on the IJ’s

decision as the substantive ruling on review.

       The IJ may continue a hearing “for good cause shown.” 8 C.F.R. § 1003.29. We review the

denial of a request for continuance under an abuse-of-discretion standard. Ilic-Lee v. Mukasey, 507

F.3d 1044, 1047 (6th Cir. 2007) (citing Abu-Khaliel v. Gonzales, 436 F.3d 627, 634 (6th Cir. 2006)).



       2
        Had the IJ concluded that Gjeluci’s petition was based on a “deliberately fabricated” claim,
8 C.F.R. § 1208.20, Gjeluci and her children would have been permanently ineligible for asylum,
8 U.S.C. § 1158(d)(6).

                                                -4-
No. 07-3625
Gjeluci v. Mukasey

Whether we, sitting de novo, would have arrived at the same decision as the IJ is immaterial—under

an abuse of discretion standard, the IJ has a considerable berth in which to make a reasoned decision.

Only if the decision “‘was made without a rational explanation, inexplicably departed from

established policies, or rested on an impermissible basis such as invidious discrimination’” will we

find an abuse of discretion. Id. (quoting Abu-Khaliel, 436 F.3d at 634).

        In Badwan v. Gonzales, 494 F.3d 566 (6th Cir. 2007), this court determined that the BIA had

abused its discretion in denying a continuance to a petitioner. The court in that case first noted that

the government had no objection to a continuance. At a minimum, therefore, this showed that “no

adversarial interest was served by the denial.” Badwan, 494 F.3d at 568. The court further found that

the immigration judge mistakenly relied upon the petitioner’s lack of evidence to show a valid

divorce as a viable ground for denying a continuance premised on the need to gather that very

evidence. In other words, “‘[t]o say that [a petitioner] was not yet eligible [for asylum] is . . . simply

a statement of the procedural posture of the case,’” not a reason to deny a continuance. Id. at 569

(quoting Ahmed v. Gonzales, 465 F.3d 806, 810 (7th Cir. 2006)). Finally, on the other ground relied

upon by the immigration judge—administrative efficiency—the court was likewise dismissive. The

court noted that this was the petitioner’s first request for a continuance and that he had made a good-

faith attempt to satisfy the documentation request before the hearing. Id. at 570. The court stated,

however, that the case might have come out differently had the petitioner sought an earlier

continuance and yet still failed to satisfy the evidentiary requirement. Id.

        This case differs materially from Badwan. The IJ had already granted Gjeluci two

continuances on her individual hearing, one of which to allow Gjeluci sufficient time to get her

                                                  -5-
No. 07-3625
Gjeluci v. Mukasey

documentation in order. Thus, the IJ was not focused myopically on expediency to the detriment of

fairness. Moreover, Gjeluci’s counsel knew about the procedures for submitting a written motion

for a continuance, but decided not to follow them here because he thought that the husband’s

revocation action would be resolved by the December hearing. That was a strategic decision made

by counsel, albeit a decision that in retrospect turned out to be a poor one. The IJ correctly noted that

Gjeluci and her counsel knew about the need for the authenticated documents well in advance of the

hearing, and that the documents would be especially important given the report calling into question

the authenticity of two medical documents. Finally, the IJ rationally found nothing extraordinary or

unusual to excuse Gjeluci’s violation of the local rule. Thus, the IJ provided a rational explanation

for denying a continuance, adhered to the established policy governing continuances, and does not

appear to have rested on an impermissible basis.



                                                  III

        Finally, we briefly discuss a matter not raised by either party, mootness. This petition for

review comes to us in an interesting procedural posture. The only matter raised in the petition is

whether the IJ abused her discretion in denying a third continuance. However, Gjeluci voluntarily

withdrew her application for asylum, withholding of removal, and relief under CAT. It is unclear,

therefore, what relief would be available to Gjeluci were we to find that the IJ abused her discretion.

In Mendez-Gutierrez v. Ashcroft, 340 F.3d 865 (9th Cir. 2003), the Ninth Circuit was confronted

with a case in which a petitioner had tried to reinstate a previously withdrawn application for asylum

relief. The government argued on petition for review that there was no law governing reinstatement,

                                                  -6-
No. 07-3625
Gjeluci v. Mukasey

and, therefore, the court did not have jurisdiction. The Ninth Circuit rejected the government’s

position, finding that a request for reinstatement of a withdrawn asylum application was analogous

to a petition to reopen a previously closed asylum case. Id. at 869; see also Vucaj v. Gonzales, 150

F. App’x 444, 452-53 (6th Cir. 2005) (applying an abuse-of-discretion standard to the petitioner’s

claim for reinstatement of a previously withdrawn asylum application).

       The government has not argued in the present case that Gjeluci’s petition is moot as a result

of her decision to withdraw her asylum application. Given the government’s silence on mootness

as well as our determination that the IJ did not abuse her discretion in denying a continuance, we

assume without deciding that Gjeluci could move to reinstate her voluntarily withdrawn asylum

application were we to grant her petition, i.e., that her petition for review before us is not moot.



                                                 IV

       Finding no abuse of discretion on the IJ’s denial of a third continuance, we DENY the

petition for review.




                                                 -7-
