Summary
This Fifth Circuit opinion reviews a petition for review of Board of Immigration Appeals decisions regarding an immigrant's motion for continuance and motion to remand. The court holds that it lacks jurisdiction to review the denial of the continuance motion under 8 U.S.C. § 1252(a)(2)(B)(i), as such determinations involve unreviewable discretion. Regarding the motion to remand based on new evidence, the court finds no abuse of discretion in the BIA's denial due to the petitioner's lack of due diligence. Consequently, the petition is dismissed in part and denied in part.
Topics
Practice areas
Questions Presented
- Whether the Fifth Circuit had jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to review the denial of a continuance in removal proceedings where the continuance was sought to await collateral relief related to cancellation of removal or adjustment of status.
- Whether the BIA abused its discretion by denying Ikome's motion to remand for consideration of his daughter's approved I-130 petition and his resulting application for adjustment of status.
Holdings
- The court lacked jurisdiction to review the BIA's affirmance of the immigration judge's denial of Ikome's motion for a continuance because the good-cause determination under 8 C.F.R. § 1003.29 incorporates discretion rather than applying a reviewable legal standard.
- The BIA did not abuse its discretion in denying Ikome's motion to remand because it reasonably determined that he failed to exercise due diligence in pursuing adjustment of status through his daughter and therefore failed to show that the evidence could not previously have been presented.
Key quotations
“In short, we have “jurisdiction to review immigration decisions only when there is a legal standard to apply.”” (128 F.4th at 688)
“Thus, “the determination of good cause remains within the [IJ]’s discretion,” id. at 419, such that it does not involve a reviewable application of a legal standard.” (128 F.4th at 689)
Factual background
Ikome, a citizen of Cameroon, entered the United States in 1989 and overstayed his visitor visa. After decades of immigration proceedings, he conceded removability in 2011 and pursued cancellation of removal and adjustment of status through petitions filed by United States-citizen spouses and, later, his daughter. Eight days before a June 2019 merits hearing, he sought a continuance to allow USCIS to adjudicate his daughter's I-130 petition, but the immigration judge denied the request after considering the late filing and the numerous prior continuances. USCIS approved the daughter's petition while Ikome's BIA appeal was pending, but the BIA denied remand because Ikome had not exercised due diligence in pursuing adjustment of status.
Procedural history
Ikome was placed in removal proceedings and conceded removability while seeking cancellation of removal and adjustment of status. The immigration judge denied a continuance to await adjudication of his daughter's I-130 petition, denied cancellation of removal, and ordered him to depart. While his BIA appeal was pending, USCIS approved the daughter's petition, but the BIA affirmed the denial of cancellation and denied Ikome's motion to remand based on lack of due diligence. The Fifth Circuit dismissed the petition in part for lack of jurisdiction over the continuance determination and denied it in part as to the motion to remand.