On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A098-493-424) Immigration Judge: Hon. Eugene Pugliese
The opinion of the court was delivered by: Garth, Circuit Judge:
Submitted Under Third Circuit L.A.R. 34.1(a) July 12, 2011
Before: SLOVITER, FUENTES, and GARTH, Circuit Judges
Eustace Simon petitions this Court for review of the Board of Immigration Appeals‟ (BIA) denial of his motion for reconsideration. We will grant Simon‟s petition for review, and hold that the BIA abused its discretion in failing to apply the principles set forth in In re Hashmi, 24 I. & N. Dec. 785 (BIA 2009), to Simon‟s case. Accordingly, we will vacate the order of removal, and will remand the matter to the BIA to reconsider Simon‟s motion for a continuance under Hashmi and In re Rajah, 25 I. & N. Dec. 127, 130 (BIA 2009).
Simon is a native and citizen of Guyana who entered the U.S. in 1994 on a tourist visa with permission to remain for six months, and remained in the U.S. after that period. Simon is presently the beneficiary of an approved I-130 immediate relative petition, and an approved I-140 work petition.
Simon first appeared in Immigration Court in Newark, New Jersey, on February 16, 2006. The Immigration Judge granted an initial continuance to allow Simon to obtain counsel and prepare his case, and thereafter granted three more continuances. At a hearing on July 26, 2007, Simon provided proof that he had applied for adjustment of status based on the approved petitions, but acknowledged that no visa numbers were immediately available. Simon‟s attorney asked for a continuance, which the Immigration Judge granted. The Immigration Judge stated that if there was no visa number available on the next court date, he would not grant any further continuances, and informed counsel that once a case had been pending for two years he would start to get "little reminders" about the need to decide the delayed matter. (A. 28.)
On February 7, 2008, the Immigration Judge held the fifth and last hearing in Simon‟s case. At this time, there was still no visa number available to Simon, and Simon sought a further continuance or administrative closure of the removal case until a visa number was available. In addition to proof of his pending adjustment of status application, he provided evidence of his family ties in the U.S., his good moral character, community involvement, and financial information. Counsel for DHS refused to agree to administrative closure of the case, and the Immigration Judge refused any further continuances and ordered Simon deported to Guyana.
Simon appealed the denial of his motion for a continuance to the BIA, which dismissed the appeal on September 23, 2009. The BIA upheld the Immigration Judge‟s decision and found that "future availability of a visa number is speculative and insufficient to establish good cause for a continuance." (A. 122.) The BIA did not address its recent decision in Hashmi, filed in April 2009.
On October 21, 2009, Simon filed a motion to reconsider, arguing that the BIA committed error by failing to address Hashmi. On April 19, 2010, the BIA denied Simon‟s motion to reconsider, holding that the Hashmi factors were not applicable because Simon could not establish prima facie eligibility for adjustment: i.e., he could not establish that a visa was immediately available. (A. 2.)
On May 18, 2010, Simon filed his petition for review ...