Third Circuit disposition — 083015np-pdf

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-3015
___________
NTOMBIFUTHI ANACLEDA SIRAYI,
Petitioner
vs
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency Nos. A98-616-172)
Immigration Judge: Margaret R. Reichenberg
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 15, 2009
Before: FUENTES, WEIS and GARTH, Circuit Judges.
Opinion filed
___________
OPINION
___________
PER CURIAM.
Petitioner Ntombifuthi Anacleda Sirayi seeks review of an order of the
Board of Immigration Appeals dismissing her appeal from the Immigration Judge’s order
denying her a continuance in her removal proceedings. Sirayi sought the continuance so a
pending Form I-130 adjustment of status application could be adjudicated. Because

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denial of the continuance was not an abuse of discretion, we will deny the petition for
review.
I.
Sirayi is a citizen of South Africa. An au pair, she entered the United
States on or about July 21, 2003, as a non-immigrant exchange visitor. Her J-1 visa
authorized her to stay and work in the United States for one year. Sirayi remained in the
United States after her visa expired. In March 2005, she was served with a notice to
appear in immigration court to defend charges that she was removable under 8 U.S.C. §
1227(a)(1)(C)(i).
On May 24, 2005, Sirayi married Nathan Murray, a United States citizen.
Murray filed a relative visa petition (form I-130) on Sirayi’s behalf, while she filed an
application to adjust her status (form I-485). Sirayi informed the Immigration Judge of
her adjustment of status application in November 2005, and two continuances were
granted on that basis. On June 27, 2006, USCIS denied the petition, citing a lack of
evidence of a bona fide marriage. In a notice sent to Sirayi’s address of record on May
16, 2006, USCIS informed her of its conclusion and provided her 30 days to submit
rebuttal or evidence. Receiving no response, USCIS denied the application on June 27,
2006, and again mailed notice to the proper address. Sirayi and her husband both deny
receiving the notice.

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On July 20, 2006, Sirayi moved for a change of venue because she relocated
to New Jersey. The motion was granted on July 25, 2006. In the new venue, Sirayi
conceded her removability at a hearing. Apparently unaware that the form I-130 was
denied, Sirayi requested and was granted yet another continuance. Sometime after that
hearing, Sirayi apparently became aware that the I-130 was denied because on December
6, 2006, Murray filed a second relative petition.
At the next listing of her removal proceedings in February 2007, the
government informed the Immigration Judge that the first I-130 application was rejected,
and Sirayi moved to continue the removal proceedings again to await the processing of
the second petition. The Immigration Judge refused to grant a continuance on Sirayi’s
requested ground, noting that the first I-130 application, which was denied, was also filed
by her husband. Nevertheless, the Immigration Judge continued the matter to April 12,
2007, so Sirayi could consider petitioning to have the first application reopened and so
she could contemplate alternative forms of relief.
During the April 12, 2007 hearing, Sirayi’s counsel informed the
Immigration Judge that petitioning to reopen the first I-130 application was impossible
because the deadline to do so had passed. Accordingly, Sirayi requested yet another
continuance so the second petition for adjustment of status could be adjudicated. This
request was rejected; nevertheless, the matter was continued for one week, so counsel
could again contemplate alternative forms of relief. At the final listing on April 19, 2007,

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Murray filed a third I-130 application on Sirayi’s behalf in July 2007, which the1
immigration judge did not have an occasion to consider.
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Sirayi asked for voluntary departure, which was granted.
An appeal to the Board of Immigration Appeals (BIA) followed on May 11,
2007. On June 10, 2007, the second I-130 application for adjustment of status was denied
by the USCIS. The BIA affirmed the Immigration Judge’s order without opinion in June1
2008. This timely petition for review followed.
II.
We have jurisdiction to review the BIA’s final orders of removal pursuant
to 8 U.S.C. § 1252(a). When the BIA affirms without an opinion, we review the
immigration judge’s decision. Dia v. Ashcroft, 353 F.3d 228, 240 (3d Cir. 2003) (en
banc). We review an immigration judge’s decision to deny a request for a continuance
for abuse of discretion. Hashmi v. Att’y. Gen., 531 F.3d 256, 259-60 (3d Cir. 2008).
Whether a denial of a continuance constitutes an abuse of discretion depends on the
particular facts and circumstances of a case. See id. at 260; see also 8 C.F.R. 1003.29
(stating that an “[i]mmigration Judge may grant a motion for a continuance for good
cause shown.”).
In a prior case, Hashmi, we held that an immigration judge abused his
discretion when he denied a continuance to allow for the agency’s adjudication of an I -
130 application. There the denial rested on the immigration judge’s desire to manage his

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calendar efficiently; the IJ did not take into account the specific facts and circumstances
of Hashmi’s case. Hashmi, 531 F.3d at 260-61. Here, in contrast, the Immigration
Judge’s denial of a continuance rested on a realistic appraisal of Sirayi’s likelihood of
benefitting from an I-130. See also id. at 260 (noting that Hashmi was eligible for status
adjustment and simply waiting for the agency to process the I-130). Here, Sirayi’s first I-
130 application had already been denied.
We upheld the denial of a continuance to allow for the adjudication of the
alien’s wife’s application for a labor certification in Khan v. Attorney General, 448 F.3d
226, 235 (3d Cir. 2006). We noted that in Khan’s situation, “any continuance would be
indefinite” and that he offered “only the speculative possibility that at some point in the
future” his wife might obtain the certification. Kahn, 448 F.3d at 235.
In denying Sirayi her final continuance request, the Immigration Judge
explained that Sirayi had:
already had an I-130 petition filed for her by her spouse and
that petition was denied by the Government after
consideration of that appeared to be its merits...[T]he Court
does not conclude that there is good cause to continue the
case for adjudication of yet another I-130 petition filed by the
same spouse. The respondent was given the opportunity to
have an I-130 petition adjudicated on her behalf by this
spouse and that opportunity was not successful. If the court
were to adopt respondent’s counsel’s viewpoint, the Court
would become subject to an endless round of I-130 filings
that would extend indefinitely into the future as long as
respondent’s husband would be willing to file an I-130 after
each successive I-130 would be denied by the Government.

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Of course, we know now that the second I-130 was also rejected by the USCIS.2
In its brief, the Government argues that Sirayi is now statutorily ineligible for a visa3
because she failed to comply with the Immigration Judge’s voluntary departure order.
See government’s brief, 22 & n.10. At the time the Immigration Judge denied the
continuance however, the voluntary departure order had not become effective.
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(A.R. 10). The Immigration Judge also noted that she had previously granted Sirayi’s
counsel time to see if the first I-130 petition could be re-opened, but Sirayi’s counsel,
believing it was too late to re-open the denial of the first I-130 petition, chose to file a
second petition instead. Id. These are reasonable observations by the Immigration Judge.
We conclude that Sirayi’s case is more analogous to Khan than Hashmi.
The speculative nature of Khan’s wife’s application for a certificate of labor strikes us as
similar to Sirayi’s speculative claim that the second I-130 might somehow result in an
outcome different from the first. Unlike Hashmi, who appeared to be eligible for2
adjustment of status, it reasonably appeared to the Immigration Judge that Sirayi was
ineligible for adjustment of status as a consequence of the first I-130 petition, which had
not been re-opened. An alien like Sirayi who marries after removal proceedings have
begun is statutorily ineligible for adjustment of status unless she establishes that the
marriage is bona fide. See 8 C.F.R. § 245.1(c); see also 8 C.F.R. § 245.1(c)(iii); 8 U.S.C.3
§ 1255(e)(3). As the USCIS specifically rejected the couple’s first offer of proof prior to
the immigration court’s ruling, Sirayi was not yet eligible for adjustment of status. We

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cannot conclude that the Immigration Judge abused her discretion in denying the
continuance.
We will deny the petition for review.

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