
USCA1 Opinion

	




        March 7, 1996           [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-2010                               DENNIS ALEXANDER MARTIN,                                     Petitioner,                                          v.                       IMMIGRATION AND NATURALIZATION SERVICE,                                     Respondent.                                 ____________________                        ON PETITION FOR REVIEW OF AN ORDER OF                           THE BOARD OF IMMIGRATION APPEALS                                 ____________________                                        Before                               Torruella, Chief Judge,                                           ___________                            Cyr and Stahl, Circuit Judges.                                           ______________                                 ____________________            Linda A. Cristello on brief for appellant.            __________________                                 ____________________                                 ____________________                      Per Curiam.   Petitioner Dennis Martin  is a native                      __________            and citizen of Jamaica who legally entered this country as an            immigrant in June 1988.  He  was convicted in April 1992 in a            Massachusetts  Superior Court  of possession of  cocaine with            intent to distribute.  The INS  then issued an Order to  Show            Cause in July 1992  based on his conviction of  an aggravated            felony.                      An  immigration  judge  (IJ)  held   a  deportation            hearing in  April 1994 at which petitioner was represented by            an  attorney.     Deportability  was   conceded  and  Jamaica            designated as the country  for deportation purposes.  Counsel            then  asked for a continuance of 15 months so that petitioner            could accumulate the seven  years required for an application            for  discretionary   relief  under     212(c),   8  U.S.C.               1182(c).1   Petitioner  would  reach the  seven-year mark  in                    1            June 1995.                      Although acknowledging the presence of  hardship --            petitioner has a stammer  which he alleges cannot be  treated            in  Jamaica and his mother who lives  here is blind -- the IJ                                            ____________________               1Section 212(c) provides in relevant part:               1                        Aliens lawfully  admitted for permanent                      resident [sic]  who temporarily proceeded                      abroad voluntarily and not under an order                      of deportation, and who are  returning to                      a lawful unrelinquished domicile of seven                      consecutive years, may be admitted in the                      discretion of the Attorney General. . . .                                         -2-            determined that there  was no cause  to grant a  continuance.            The  Board of Immigration  Appeals (BIA)  summarily dismissed            the  appeal when  counsel failed  to file  a brief,  and this            petition for review ensued.                      Petitioner contends that the IJ should have granted            a  continuance  so  that  he  could  apply  for  a     212(c)            discretionary waiver.     An  IJ  may grant  a  motion for  a            continuance "for good  cause shown."   8 C.F.R.    3.29.   We            review the denial of  such a motion for abuse  of discretion.            See  Baires v.  INS, 856  F.2d 89,  91 (9th  Cir. 1988).   In            ___  ______     ___            support of  his position  on review, petitioner  first argues            that  as a  statute of  repose and  forgiveness,    212(c) is            liberally construed  in favor of aliens.   He then analogizes            his situation to a case  in which the BIA held that  a motion            to  reopen  should be  granted where  an  alien has  filed an            application for adjustment of status contemporaneously with a            visa  petition.  See  Matter of Garcia,  16 I. &  N. Dec. 653                             ___  ________________            (BIA 1978).                      In Garcia, an IJ had ordered  the deportation of an                         ______            alien  as an overstay.   The alien  then moved  to reopen the            proceedings  so that  he  could apply  for  an adjustment  of            status pursuant to    245, 8 U.S.C.   1255.   Ordinarily, the            INS required a prima  facie showing that, in addition  to the            filing of an application for an adjustment, (1) the alien was            eligible  to receive an immigrant  visa and was admissible to                                         -3-            the U.S. for permanent  residence, and (2) an  immigrant visa            was  immediately  available to  him or  her  at the  time the                 ___________  _________            application  was  filed.    In  the  case  of  an  adjustment            application  simultaneously filed  with a visa  petition, the            INS  would   deny  the  application  because   the  visa,  by            definition, would not be immediately available.                 However, an  amendment to the INA  changed the provision            for  dating the adjustment application.  As a result, the INS            amended   the   regulations   specifically  to   permit   the            simultaneous  filing  of  an  application  for  adjustment of            status  and a visa petition.   In Garcia,  the BIA recognized                                              ______            that  to continue  the  practice  of  requiring  immediately-            available  visas would  nullify the  new simultaneous  filing            provision.   To give proper  effect to this  provision, then,            the BIA  decided that  it would generally  reopen deportation            proceedings unless  (1)  ineligibility was  apparent  on  the            record, or (2) the adjustment application would  be denied on            statutory grounds or as a matter of discretion, even were the            visa  petition  approved.     In  this  way,  the  adjustment            application would be retained until the INS ruled on the visa            petition.                      We find  Garcia inapposite.  First,  to be entitled                               ______            to reopening, the  alien's visa petition must  be prima facie            approvable.   Petitioner's  attempt to  make this  showing in            regard to  his  application  for a     212(c)  waiver  fails.                                         -4-            According to him, the IJ opined  that the hardship petitioner            alleged would have  been the basis for a  "successful" waiver            application.  However, the record does not reveal that the IJ            made such a statement.  Rather, she stated that a continuance            of  15  months to  enable petitioner  to  apply for    212(c)            relief was  not a good  reason to grant  petitioner's motion,            "understanding  that there are --  [that] this may  be a case            where there are -- where  there is hardship.   Unfortunately,            the [petitioner]  has been convicted of  an aggravated felony            as he has admitted in his pleadings."  At most,  then, the IJ            viewed  the case as possibly involving hardship.  Even if she                                ________            definitely had  determined the presence of hardship, however,            she still  would need to balance the  humane factors favoring            relief against the adverse factors favoring deportation.  See                                                                      ___            Matter of Marin,  16 I. & N. Dec. 581  (BIA 1978); Gouveia v.            _______________                                    _______            INS, 980 F.2d 814, 816 (1st Cir. 1992).            ___                      Second,  as the  IJ pointed  out, petitioner  is an            aggravated felon.   Indeed,  the last  sentence  of    212(c)            provides that an  aggravated felon  who has  served at  least            five years in prison is ineligible to apply for discretionary            relief.   Unlike the amendment to   245, then, the changes to               212(c)   in  regard   to  aggravated  felons   indicate  a            restrictive  approach.   Further,  even  where,  as here,  an            aggravated felon is entitled to make a    212(c) application,            "it  is  incumbent upon  [such]  a  petitioner  not  only  to                                         -5-            demonstrate that favorable  factors preponderate but also  to            present  'unusual or outstanding  equities' as a prerequisite            for a waiver of excludability."  Gouveia, 980 F.2d at 816.                                             _______                      Without  deciding  whether such  equities  exist in            this  case, we cannot say  that the denial  of a continuance,            based in part on petitioner's status as an  aggravated felon,            was in  derogation of the intent  of   212(c).   Here, the IJ            refused a request to continue the proceedings for over a year            so that  Martin could  file an application  for discretionary            relief.   Given the length of time involved and the intent of            Congress to deport  aggravated felons with  relative dispatch            and to  deny them,  in some circumstances,  opportunities for            relief from  deportation, we  conclude  that the  IJ did  not            abuse her discretion in denying the motion for a continuance.                      The  petition for  review  is summarily  dismissed.            See  Local Rule  27.1.  The  motion for  a stay  is denied as            ___            moot.1                 1                                            ____________________               1The INS's denial of petitioner's motion for a stay may be               1            challenged  in a habeas corpus proceeding.  See, e.g., Dhangu                                                        ___  ____  ______            v. INS, 812 F.2d 455, 459 (9th Cir. 1987).               ___                                         -6-
