Filed: May 13, 2008
Latest Update: Mar. 02, 2020
Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 08a0179p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _ X Petitioner, - MORGAN UKPABI, - - - No. 06-4028 v. , > MICHAEL B. MUKASEY, Attorney General, - Respondent. N On Petition for Review from the Board of Immigration Appeals. No. A79 334 237. Argued: March 13, 2008 Decided and Filed: April 17, 2008* Before: CLAY and McKEAGUE, Circuit Judges; BOYKO, District Judge.** _ COUNSEL ARGUED: Scott A. Keillor
Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 08a0179p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _ X Petitioner, - MORGAN UKPABI, - - - No. 06-4028 v. , > MICHAEL B. MUKASEY, Attorney General, - Respondent. N On Petition for Review from the Board of Immigration Appeals. No. A79 334 237. Argued: March 13, 2008 Decided and Filed: April 17, 2008* Before: CLAY and McKEAGUE, Circuit Judges; BOYKO, District Judge.** _ COUNSEL ARGUED: Scott A. Keillor,..
More
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 08a0179p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Petitioner, -
MORGAN UKPABI,
-
-
-
No. 06-4028
v.
,
>
MICHAEL B. MUKASEY, Attorney General, -
Respondent. N
On Petition for Review from the
Board of Immigration Appeals.
No. A79 334 237.
Argued: March 13, 2008
Decided and Filed: April 17, 2008*
Before: CLAY and McKEAGUE, Circuit Judges; BOYKO, District Judge.**
_________________
COUNSEL
ARGUED: Scott A. Keillor, Ypsilanti, Michigan, for Petitioner. John C. O’Quinn, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Scott
A. Keillor, Ypsilanti, Michigan, for Petitioner. W. Manning Evans, Mark C. Walters, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
_________________
OPINION
_________________
BOYKO, District Judge. Petitioner, Morgan Ukpabi, seeks review of an order of removal,
issued following the denial by the Immigration Judge (“IJ”) of Petitioner’s request for a continuance
to await the outcome of a second Visa Petition (“Form I-130") filed by Petitioner’s third wife. The
Board of Immigration Appeals (“BIA”) adopted and affirmed the IJ’s decision. Petitioner appeals
the IJ’s denial of his motion for a continuance and the BIA’s summary affirmance.
*
This opinion was originally issued as an “unpublished opinion” filed on April 17, 2008. On May 5, 2008, the
court designated the opinion as one recommended for full-text publication.
**
The Honorable Christopher A. Boyko, United States District Judge for the Northern District of Ohio, sitting
by designation.
1
No. 06-4028 Ukpabi v. Mukasey Page 2
The appeal is not well-taken. Petitioner has failed to demonstrate the IJ abused her discretion
or that her decision violated either the Due Process Clause of the United States Constitution or
international law. Accordingly, we AFFIRM.
I.
Petitioner is a native and citizen of Nigeria who was admitted to the United States as a non-
immigrant visitor for business on February 23, 1999. Petitioner was apparently married in his native
Nigeria. Once here, he married a United States citizen named Robin L. Chateau — a union which
purportedly ended in 2003. Later, he married a United States citizen named Andrea Blakely.
Petitioner was originally authorized, by his non-immigrant business visa, to stay in this country for
three months; and he overstayed that authorized period. A Notice to Appear, dated November 22,
2002, was issued to Petitioner by the United States Immigration and Naturalization Service
(“INS”).1
On or about March 21, 2001, Petitioner submitted an Application to Register Permanent
Resident or Adjust Status (I-485) to the INS, based upon his marriage to Robin L. Chateau, an
American citizen. In order to justify adjustment of status, the marriage to the United States citizen
must be valid and bona fide, i.e., the bride and groom must have intended to establish a life together
at the time they were married. In April of 2002, the INS sent a request to Ms. Chateau for proof that
Petitioner’s first marriage had been terminated under the laws of Nigeria. Six months later, Ms.
Chateau responded that Petitioner had no further documents regarding the prior marriage, and that
her trust in Petitioner “is gone and so is my Petition.” After the withdrawal of the Visa Petition was
confirmed, the Notice to Appear, charging Petitioner with removability, was prepared and mailed.
Due to some discrepancies in the agency’s records, the notice was most likely mailed to an outdated
address. A scheduling notice, setting a hearing date of August 31, 2005, in immigration court, was
sent to 5745 Parker St., Detroit, Michigan. Petitioner failed to appear at the hearing and he was
ordered removed in absentia.
On March 31, 2005, Petitioner executed a new application to adjust status (I-485), based on
his third marriage to a U.S. citizen named Andrea Blakely. Ms. Blakely signed a Visa Petition on
her husband’s behalf the following month. She represented that she and Petitioner had lived
together since December 2002 at 20443 Binder, Detroit, Michigan; that his previous marriage to Ms.
Chateau ended in March of 2003; and that she and Petitioner married in August of 2003. The new
Visa Petition and adjustment application were filed with USCIS on April 25, 2005; and Petitioner
was directed to appear on October 25, 2005 for an interview. At the interview, Petitioner was
arrested and taken into custody because of the previously-issued in absentia removal order. Shortly
thereafter, Petitioner moved to reopen immigration court proceedings, claiming he had not received
notice of the August 31, 2005 hearing date. The motion was granted; and a new hearing date was
set for January 5, 2006. In the meantime, Petitioner remained in custody.
While these events transpired, USCIS notified Ms. Blakely, on December 20, 2005, of its
intention to deny the Visa Petition she had filed on Petitioner’s behalf. (Notice of Intent to Deny
or “NOID”). Ms. Blakely was allowed sixty days, or until February 20, 2006, to respond. A copy
of the NOID was sent to counsel for Petitioner. In support of the intent to deny, the government
noted the following:
(1) Although several individuals stated Petitioner’s relationship with Ms. Blakely began in
February of 2002, Petitioner appeared for an interview at the INS with his second wife in
March of 2002;
1
On March 1, 2003, service and benefit functions of the INS transitioned into the Department of Homeland
Security as the U.S. Citizenship and Immigration Services (“USCIS”).
No. 06-4028 Ukpabi v. Mukasey Page 3
(2) Neither Petitioner nor his second wife amended the record of his address, which showed
a Parker Street address, even though in March of 2002, they were living at a Burgess Street
address;
(3) Documentation offered by Petitioner did not support the contention he was part-owner
of a business with his third wife;
(4) Petitioner and his third wife filed separate income taxes, but purportedly amended to file
jointly just days before their October 2005 interview with USCIS;
(5) Ms. Blakely waited almost two years after the marriage before filing the Visa Petition
on Petitioner’s behalf;
(6) The couple provided “minimal documentary evidence” supporting the conclusion they
married with the intention of establishing a life together.
At the January 5, 2006 immigration court hearing, Petitioner admitted the allegations in the
Notice to Appear and conceded removability as a visa “overstay.” The government provided the
IJ with a copy of the NOID sent to Petitioner’s third wife. When Petitioner sought a continuance
and stated his intention to seek adjustment of status, the IJ asked if the Visa Petition had been
approved. The IJ commented that it appeared approval would be unlikely, and found no basis to
continue the case. The IJ remarked further that Petitioner had not “offset” the factors contained in
the NOID; that she would not continue her hearing awaiting an I-130 adjudication while Petitioner
was in custody; and that she would not address the issue of bond. The IJ did, however, allow one
week for Petitioner and his counsel to discuss the possibility of pursuing other relief. On the date
of the next hearing, Petitioner submitted a “memorandum supporting request for continuance,”
asserting he was appealing the denial of bond and that his third wife had submitted her rebuttal to
the NOID.
At the hearing of January 12, 2006, the government asserted its opposition to a continuance
and referenced concerns about Petitioner’s prior marriages. Petitioner objected to consideration of
the NOID, and to statements concerning the prior Visa Petition, which had been withdrawn.
The IJ remarked, in her oral decision, that she initially denied the request for continuance
because Petitioner had not sufficiently overcome the findings in the NOID. However, she
acknowledged receipt of Petitioner’s supporting memorandum, which relied upon Matter of Velarde,
23 I & N Dec. 253 (BIA 2002), for the proposition that the IJ cannot deny a continuance solely
because a Visa Petition has not been approved. The IJ distinguished Velarde on two grounds: first,
it pertains to motions to reopen and these proceedings were already reopened; and second, Velarde
applies where, unlike here, there is prima facie evidence to establish a bona fide marriage. The IJ
announced:
. . . the Department of Homeland Security has sufficient evidence upon which
it has advised . . . the United States citizen spouse [] that the immigrant visa petition
on behalf of Morgan Ukpabi will be denied because there is insufficient evidence on
which to base a conclusion that the parties married for the purpose of establishing a
life together. Counsel has not overcome the assertions made in this.
The IJ announced further that Petitioner “has equally not established any basis on which the
Court believes that a continuance in this case is merited”; and “[t]his is not a case where the Court
is undertaking a ‘myopic insistence upon expeditiousness in the face of justifiable request for
delay.’” The IJ concluded by ordering Petitioner removed to Nigeria.
No. 06-4028 Ukpabi v. Mukasey Page 4
Petitioner filed an administrative appeal; and the BIA allowed additional evidence and
briefing.
On June 29, 2006, the BIA adopted and affirmed the decision of the IJ, “finding the
respondent [Ukpabi] removable as charged, denying the request for a continuance, and ordering him
removed from the United States.” A timely Petition for Review followed.
II.
This Court has jurisdiction to review the BIA order of removal, following the IJ’s denial of
Petitioner’s request for a continuance, under Section 242(a) of the Immigration and Nationality Act,
as amended (INA), codified at 8 U.S.C. § 1252(a). Specifically, this Court held in Abu-Khaliel v.
Gonzales, 436 F.3d 627, 631-34 (6th Cir. 2006), that it has jurisdiction to review an IJ’s denial of
a motion for continuance, notwithstanding the jurisdictional bar appearing in 8 U.S.C.
§ 1252(a)(2)(B)(ii) which concerns certain discretionary decisions.
III.
A. Petitioner’s Claims on Review
Petitioner argues the IJ abused her discretion by denying Petitioner’s motion for a
continuance in order to await the outcome of a pending Visa Petition. Petitioner also argues his
constitutional right to Due Process was violated by the IJ when she denied a continuance for the I-
130 Visa Petition to be fully adjudicated. Moreover, Petitioner argues denial of a continuance and
the order of removal violated various multilateral treaties which favor preserving family integrity.
Petitioner contends the IJ was aware of the pending I-130 Visa Petition at the hearing for the
I-485 Application for Permanent Resident Status; but refused to grant a continuance to allow full
adjudication of the spouse’s I-130 Petition. Petitioner directs the panel’s attention to Benslimane
v. Gonzales, 430 F.3d 828, 832 (7thCir. 2006): “an immigration judge cannot be permitted, by
arbitrarily denying a motion for a continuance without which the alien cannot establish a ground on
which Congress has determined that he is eligible to seek to remain in this country,
8 U.S.C.§§ 1151(b)(2)(A)(i), 1255(a), to thwart the congressional design.”
Petitioner further insists the continuance was denied because Petitioner was detained, and
not on any substantive grounds. That is, he asserts the IJ would rather deport him than give him a
bond.
Petitioner contends the IJ’s reasoning was deficient; and thus, the denial of a continuance
was erroneous under Subhan v. Ashcroft, 383 F.3d 591 (7th Cir. 2004).
According to Petitioner, the decision of the IJ is wasteful of judicial resources, as the matter
could be reopened after the I-130 is adjudicated. Also, Petitioner claims his Due Process rights were
violated because “it now becomes a race between getting his I-130 adjudicated and getting this case
resolved.”
B. Standard of Review
We review the BIA’s affirmance of the IJ’s denial of Petitioner’s motion for continuance
under an abuse of discretion standard. Abu-Khaliel, 436 F.3d at 634. An abuse of discretion occurs
if “the denial . . . was made without a rational explanation, inexplicably departed from established
policies, or rested on an impermissible basis such as invidious discrimination.” Ilic-Lee v. Mukasey,
507 F.3d 1044, 1047 (6th Cir. 2007) (quoting
Abu-Khaliel, 436 F.3d at 634 (citing Balani v. INS,
669 F.2d 1157, 1161 (6th Cir. 1982))).
No. 06-4028 Ukpabi v. Mukasey Page 5
C. Motion for Continuance
An IJ “may grant a motion for continuance for good cause shown.” 8 C.F.R. § 1003.29
(2003) (emphasis added). Finding “good cause” is crucial since a continuance, in effect, allows an
alien to remain in the United States for a period of time without any defined legal immigration
status. An unreasonable continuance would thwart the operation of the statutes providing for
removal of inadmissible (8 U.S.C. § 1182) and deportable (8 U.S.C. § 1227) aliens.
Petitioner conceded his removability for overstaying his original non-immigrant visa. He
also conceded his third wife’s Visa Petition had not yet been granted. The NOID, issued by the
USCIS, showed it was unlikely the Visa Petition would be granted. The evidence, rather than
establishing a bona fide marriage, reasonably led USCIS to conclude Petitioner’s third marriage was,
at best, suspect.
In the recent Ilic-Lee decision, we faced the issue of the denial of a motion for continuance,
and distinguished the Seventh Circuit opinions upon which Petitioner relies. In particular, we relied
upon our prior decision in El Harake v. Gonzales, 210 F. App’x 482, 489 (6th Cir. 2006): “It cannot
be the case that anytime an alien files an I-485 petition or has an I-130 petition filed on his behalf,
the IJ is required to grant a continuance. Such a view would conflict with the discretion that the
regulations explicitly provide to the IJ.” Ilic-Lee, 507 F.3d at 1047-48. In Subhan, upon which
Petitioner relies, there was an abuse of discretion because the IJ offered no reason for denying the
continuance. In Benslimane, moreover, the IJ provided an arbitrary reason. Here, however, as in
Ilic-Lee, the government opposed the request for a continuance; and the USCIS provided evidence
to the IJ of the doubtful validity of Petitioner’s third marriage. Further, Petitioner provided no
evidence to the IJ the application was likely to be approved. Where the record shows Petitioner’s
motion did not merit a continuance; where there is a reasonable explanation given by the IJ; where
there is no showing of discriminatory intent; and where there is no departure from established
policy, this Court will not find the IJ abused her discretion in denying the Petitioner’s motion. Ilic-
Lee, 507 F.3d at 1048.
D. International Law
While Petitioner may be correct in arguing the United States has a policy favoring the
sanctity of marriage and family, he has failed to identify any specific violation of international law
in the handling of his case. Moreover, “[i]t is the role of Congress, not courts, to ensure that
immigration laws comport with family, societal, and other values.” Ilic-Lee, 507 F.3d at 1052.
E. Due Process
Petitioner asserts a Due Process right to a continuance while a pending Visa Petition is fully
adjudicated. It is well-settled that whether to grant a continuance is a determination left to the broad
discretion of the IJ. Sedrakyan v. Gonzales, 237 F. App’x 76, 80 (6th Cir. 2007); 8 C.F.R. § 1003.29
(2003). Furthermore, we have previously rejected the Due Process argument advanced by
Petitioner, holding failure to obtain discretionary relief “does not amount to a deprivation of a liberty
interest” protected by the Constitution. Abu-Khaliel, 436 F.3d at 635 (quoting Huicochea-Gomez
v. INS,
237 F.3d 696, 700 (6th Cir. 2001)).
IV.
For the reasons set out above, we AFFIRM the BIA’s affirmance of the IJ’s denial of the
Petitioner’s motion for continuance of his I-485 adjustment of status hearing, which resulted in
finding Petitioner, Morgan Ukpabi, removable as charged, and ordering him removed from the
United States to Nigeria.
