USCA1 Opinion
March 7, 1996 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-2010
DENNIS ALEXANDER MARTIN,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
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ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
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Before
Torruella, Chief Judge,
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Cyr and Stahl, Circuit Judges.
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Linda A. Cristello on brief for appellant.
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Per Curiam. Petitioner Dennis Martin is a native
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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
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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. . . .
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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
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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
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(BIA 1978).
In Garcia, an IJ had ordered the deportation of an
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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
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the U.S. for permanent residence, and (2) an immigrant visa
was immediately available to him or her at the time the
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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
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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
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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.
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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
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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
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Matter of Marin, 16 I. & N. Dec. 581 (BIA 1978); Gouveia v.
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INS, 980 F.2d 814, 816 (1st Cir. 1992).
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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
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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.
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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
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moot.1
1
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1The INS's denial of petitioner's motion for a stay may be
1
challenged in a habeas corpus proceeding. See, e.g., Dhangu
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v. INS, 812 F.2d 455, 459 (9th Cir. 1987).
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