2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-28-2009

Sirayi v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3015

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Recommended Citation

"Sirayi v. Atty Gen USA" (2009). 2009 Decisions. Paper 926.

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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 
1

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,
 Murray filed a third I-130 application on Sirayi’s behalf in July 2007, which the 1

immigration judge did not have an occasion to consider.

3

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 June 1

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
4

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 I130 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. 
 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 visa

3

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. 

5

(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 for 2

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 
6

cannot conclude that the Immigration Judge abused her discretion in denying the

continuance.

We will deny the petition for review.