This opinion was originally released in typescript on Decem- 

ber 5, 2011.

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-2795

RICARDO YONZON CALMA,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney

General of the United States,

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals.

No. A026 702 335

ARGUED JUNE 14, 2011—DECIDED DECEMBER 5, 2011

OPINION PUBLISHED DECEMBER 13, 2011

No. 10-3973

OLEH KHOMYSHYN,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney

General of the United States,

Respondent.
2 Nos. 10-2795 & 10-3973

This court granted Khomyshyn’s unopposed motion to 

waive oral argument. The case is therefore submitted on the

briefs.

This opinion was originally released in typescript on 

December 5, 2011.

Petition for Review of an Order of the

Board of Immigration Appeals.

No. A088 187 224 

SUBMITTED JUNE 14, 2011 —DECIDED DECEMBER 5, 2011  

OPINION PUBLISHED DECEMBER 13, 2011

Before POSNER, ROVNER, and WOOD, Circuit Judges.

WOOD, Circuit Judge. The petitioners in these consolidated cases, Ricardo Calma and Oleh Khomyshyn, have

a great deal in common. Both have been in the United

States for many years without permission, and each would

like to adjust his status to that of lawful permanent resident through relatives who are legitimately in the United

States. When the time came for an Immigration Judge (IJ)

to issue a decision, each was found ineligible for permanent residence because of the lack of an approved familyrelative petition, Form I-130. Confronted with that obstacle,

they asked the IJs to continue the removal proceedings,

but the IJs denied those requests and ordered removal.

We have consolidated their petitions for review. Although
Nos. 10-2795 & 10-3973 3

we are satisfied that we have jurisdiction over those

petitions, we find no abuse of discretion in the judges’

rulings and thus deny both petitions.

I

A

Calma is a citizen of the Philippines who came to the

United States as a temporary worker in 1982. In 1986

he married Pamela Fuoss, a U.S. citizen, and she filed an I130 petition on his behalf. But during her interview

in support of the application and later in an affidavit,

Fuoss admitted that she married Calma only so that

he could remain in the United States. She withdrew

her petition, prompting the legacy Immigration

and Naturalization Services to place Calma in deportation

proceedings before an IJ. After Calma failed to show

up, the INS administratively closed the case in September

1987.

Calma reemerged 18 years later, in April 2005, when his

son Roderick, a U.S. citizen, filed a second I-130 petition on

his behalf. The Department of Homeland Security (DHS)

approved Roderick’s petition in July of that year, and

in September Calma moved to restore his earlier deportation hearing (by this time called a removal proceeding) to

the calendar. Calma indicated that once the proceeding

was active again, he would apply for permanent residence

based on his son’s approved I-130 petition.

Calma’s petition to restore the case was successful,

though as we shall see, a Pyrrhic victory. IJ Zerbe held
4 Nos. 10-2795 & 10-3973

a deportation hearing, at which the judge found that Calma

was deportable for overstaying his visa, as charged in

the 1987 administrative-closure order. Calma informed

the IJ that he was working to obtain an adjustment of

status through his son. In response, the IJ continued the

hearing for a year to give Calma time to apply for

his adjustment of status and to give the government an

opportunity to perform necessary background checks.

At the next hearing, the government informed Calma that

it intended to revoke his son’s I-130 petition based on

the fraudulent marriage in 1986. The IJ continued

the matter a second time to await the resolution of the

revocation proceedings.

The month before Calma’s next hearing, DHS revoked

Roderick’s I-130 petition after concluding that Calma

married Fuoss for immigration benefits. The agency

determined that the rebuttal evidence that Calma submitted, including affidavits from Calma, his current wife,

and the couple who arranged the sham marriage, failed

to refute the 1987 affidavit filed by Fuoss admitting the

fraud. DHS concluded that the 1986 marriage “was not

valid for immigration purposes,” and that Calma’s fraud

was a “good and sufficient” reason to deny his son’s I130 petition. With the I-130 petition revoked, Calma no

longer had a basis for seeking permanent residence in

the United States. At that point, he asked for a continuance

so that he could appeal the decision to revoke to the

Board. The IJ accommodated this request with a postponement until October 24, 2008.

Unfortunately, when Calma returned on that date, the

Board still had not resolved his appeal from the revocation
Nos. 10-2795 & 10-3973 5

of the I-130 petition. Calma asked for yet another continuance, but this time the IJ’s patience was at an end. Commenting that he did not believe that any further delay was

warranted, he denied this last postponement and ordered

Calma removed.

The Board dismissed Calma’s appeal from the order

denying the continuance in July 2010. It found that the

pending I-130 appeal was insufficient cause for granting

the continuance. Moreover, the Board continued, Calma

was unable to show prejudice to his application for permanent residence because he presented no evidence that his

appeal from the revocation of the I-130 petition had been

successful. (This was putting it mildly; in fact, five months

earlier the Board had dismissed Calma’s appeal of the

revoked visa petition, citing Calma’s fraudulent marriage.

Calma did not petition for review of that decision.) The

petition for review now before us in No. 10-2795 is from

this decision of the Board. This was a final decision that

discussed only the continuance question; its practical effect

was to leave undisturbed the IJ’s decision that Calma was

removable as charged.

B

Khomyshyn’s case is somewhat less complicated. He

is a citizen of Ukraine who came to the United States on

a tourist visa in 2000. He appeared at his first hearing

before an IJ in March 2009 and asked IJ Zerbe to continue

his case so that his wife, who was herself a permanent U.S.

resident at the time, could file an I-130 petition on his

behalf. Khomyshyn explained that they were waiting to
6 Nos. 10-2795 & 10-3973

submit the petition until his wife became a naturalized

citizen, a status she would have been eligible to begin

seeking five months later. (Oddly, the record is silent about

her later actions. More than two years have passed since

the IJ’s decision, but Khomyshyn has not revealed whether

his wife has since naturalized. He concedes that at the time

of briefing the immediate-relative petition had not been

submitted.) He urged that as the spouse of a citizen

he would be immediately eligible for adjustment of status,

but as the spouse of a permanent resident he would

be subject to DHS’s “priority-date” system and would thus

have to wait several years before becoming eligible for this

relief. 

The IJ denied the continuance request and ordered

Khomyshyn removed. The IJ noted that Khomyshyn’s wife

had not yet filed an immediate-relative petition on

his behalf and concluded that even if she had, a continuance would still be inappropriate because, as a permanent

resident, it would take more than four years for her

to confer a benefit on Khomyshyn. Although the IJ recognized that the wait would be reduced if Khomyshyn’s

wife became a citizen, he thought it “inappropriate to

assume that she would qualify for . . . naturalization.” In

general terms, the IJ explained that he considered it

improper to continue a case “so that the alien can at

some future unknown date accrue or develop an equity

which would qualify him for relief from removal,” particularly in light of the agency’s goal that IJs complete cases

within 18 months.

Khomyshyn’s appeal to the Board challenged only

the IJ’s order denying his request for a continuance until
Nos. 10-2795 & 10-3973 7

he could establish his eligibility for adjustment of status.

The Board noted that he did not otherwise challenge his

removability. Exercising de novo review, it affirmed the

IJ’s decision to deny the continuance request. In so doing,

it highlighted the IJ’s decision to deny “the continuance

request because [Khomyshyn’s] wife had not yet filed the I130” and the fact that Khomyshyn “could not establish

visa availability as the spouse of a lawful permanent

resident.” This reasoning, the Board concluded, was

consistent with the approach it had announced in Matter

of Hashmi, 24 I. & N. Dec. 785, 790-91 (B.I.A. 2009),

a precedential decision providing a non-exhaustive list

of factors that IJs should consider when deciding a

request for a continuance. The Board criticized the IJ

for taking into account his case-completion goals, but

it concluded that remand was not necessary because

that factor was not the IJ’s primary consideration.

Khomyshyn’s petition for review, No. 10-3973, seeks

relief from the final decision of the Board refusing a

continuance and thus ordering his removal.

II

Both petitioners argue that the IJ (coincidentally, the

same one) abused his discretion in denying their

requested continuances. But before we address

that question, we must decide whether we have jurisdiction over these two petitions for review. In Kucana

v. Holder, 130 S. Ct. 827 (2010), the Supreme Court held

that the jurisdiction-stripping language of 8 U.S.C.

§ 1252(a)(2)(B)(ii) did not apply to actions of the
8 Nos. 10-2795 & 10-3973

Attorney General made discretionary by regulation, as

opposed to statute. This led to a ruling in Kucana itself

that judicial review of a motion to reopen removal proceedings in which the petitioner sought asylum was available,

albeit only for abuse of discretion. This was so despite

the fact that the ultimate question—whether to reopen—rests firmly within the Attorney General’s discretion.

The BIA must reach a “final” decision on the

overall removal proceeding before a petition may be

filed in this court, see 8 U.S.C. § 1252(a)(1) (providing

for “[j]udicial review of a final order of removal”), but

no one disputes that it has done so in both of the

cases before us, even though the central legal issue relates

to the continuances. A “final” judgment in a civil case

in federal court is also normally necessary before an

appeal may be taken to the court of appeals, see 28 U.S.C.

§ 1291, but that does not mean that the appellant is

limited to making arguments about the ultimate merits

of the case. We review bottom-line judgments—a point

that is well illustrated by the rule permitting us to

affirm on a basis not argued, as long as it finds proper

support in the record. See, e.g., Ruth v. Triumph

Partnerships, 577 F.3d 790, 797 (7th Cir. 2009); Winters

v. Fru-Con Inc., 498 F.3d 734, 743 (7th Cir. 2007). Interim

rulings and alternative theories alike are folded into

the final judgment, and so the appellant may assert that

the district court should have relied on a different ground,

or granted a continuance, or denied a motion in limine,

or compelled certain discovery. Just so here: Calma and

Khomyshyn now face final orders of removal, but their
Nos. 10-2795 & 10-3973 9

petitions do not attack the merits of the Board’s decisions

not to adjust their status. If they did, we would be compelled to dismiss both petitions for review for want

of jurisdiction. Instead, Calma and Khomyshyn are asserting that the IJ ruled prematurely; they want continuances

not for the purpose of digging up evidence that already

exists, but to allow time for other agencies to complete

their work. They argue that, at least in this situation,

a challenge to the denial of the continuance is not covered

by the jurisdiction-stripping rule. This is a point that

deserves close attention.

In Calma’s case, the government assumes without

analysis that Kucana supports this court’s jurisdiction and

that our review is under the deferential abuse-of-discretion

standard. In Khomyshyn’s case, in contrast, the government has argued that Kucana holds only that our jurisdiction was not eliminated by 8 U.S.C. § 1252(a)(2)(B)(ii),

which removes jurisdiction to review a decision of

the Attorney General “the authority for which is

specified under this subchapter to be in the discretion

of the Attorney General.” In Juarez v. Holder, 599 F.3d 560

(7th Cir. 2010), however, decided two months after

Kucana, we commented that Kucana did not affect 8 U.S.C.

§ 1252(a)(2)(B)(i), which removes jurisdiction over

“any judgment regarding the granting of relief

under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of

this title.” See also Leguizamo-Medina v. Gonzales, 493

F.3d 772 (7th Cir. 2007). In both of the cases before us,

the ultimate decision (adjustment of status) is governed

by one o f the sta tute s list e d in s ectio n

1252(a)(2)(B)(i)—specifically, section 1255, which governs
10 Nos. 10-2795 & 10-3973

adjustment of status—and so the question before us

is whether we have jurisdiction to review the denial of

a continuance sought for the purpose of deferring

final decision in that kind of case. Although Kucana

is informative, it does not definitively resolve this issue. Indeed, the Court specifically left open “the question

whether review of [decisions made discretionary

by regulation] would be precluded if the court would lack

jurisdiction over the alien’s underlying claim for relief.”

Kucana, 130 S. Ct. at 839 n.17. 

The government argues that because Khomyshyn’s

request for a continuance is “ancillary” to his underlying

request for adjustment of status (and it might have said

the same about Calma), this court lacks jurisdiction under

8 U.S.C. § 1252(a)(2)(B)(i). It finds support for this position

in our pre-Kucana decisions in Leguizamo-Medina,

supra; Martinez-Maldonado v. Gonzales, 437 F.3d 679, 683

(7th Cir. 2006) (precluding judicial review over motions

to reopen or reconsider where court lacked ability

to review underlying claim); and Dave v. Ashcroft, 363

F.3d 649, 652 (7th Cir. 2004) (same). It also points to

two post-Kucana decisions, Juarez, 599 F.3d 560, and

Pawlowska v. Holder, 623 F.3d 1138 (7th Cir. 2010), both of

which it reads as adopting a broad reading of LeguizamoMedina. A closer look at Juarez and Pawlowska and similar

decisions in other circuits, however, reveals that the

rule may not be as absolute as the government suggests.

The rationale of our decision in Subhan v. Ashcroft, 383

F.3d 591 (7th Cir. 2004), also points toward a more nuanced

approach to this question. 
Nos. 10-2795 & 10-3973 11

The best starting point for evaluating these arguments is

with the decision in Leguizamo-Medina. In that case, decided three years before Kucana, petitioner LeguizamoMedina had applied for adjustment of status as the spouse

of a U.S. citizen. At the hearing evidence emerged suggesting that the marriage was a sham. Leguizamo-Medina’s

husband then withdrew his immediate relative petition,

but later he submitted a new affidavit swearing that the

marriage was genuine. The IJ resolved matters with a

finding that the marriage was phony; this meant that

Leguizamo-Medina was not of good moral character and

thus was not entitled to cancellation of removal under

8 U.S.C. § 1229b (one of the statutes mentioned in

§ 1252(a)(2)(B)(i)). The BIA agreed, and the petitioner

then advanced to this court. 

We acknowledged that questions of law were reviewable

pursuant to § 1252(a)(2)(D), but we pointed out that

Leguizamo-Medina was raising only two arguments:

first, that the IJ should have believed her testimony rather

than her husband’s, and second, that the IJ abused

his discretion by declining to grant a continuance so that

the husband’s sister could testify. 493 F.3d at 774. We

characterized both of those arguments as factual and thus

concluded that neither fell within the scope of

§ 1252(a)(2)(D). We commented on the issue that

was eventually resolved in Kucana (whether subpart

(B)(ii) bars review only of decisions made discretionary

by statute), but put that to one side since the relevant

subpart for her case was (B)(i). The latter subsection,

we said, “forecloses all review of decisions denying

requests for cancellation of removal.” We then continued

as follows:
12 Nos. 10-2795 & 10-3973

When an alien seeks not deferral of final decision, but

just an opportunity to present more evidence, it is

difficult to see how one could “review the denial of a

continuance” at all. The thing being reviewed (when

review is authorized) is the agency’s final decision

(here, a decision not to cancel the petitioner’s removal).

In an appeal from a district court, we don’t “affirm the

order sustaining the hearsay objection” or anything

similar; we review the final decision (see 28 U.S.C.

§ 1291) to determine whether the steps leading to that

decision were erroneous (and, if erroneous, whether

they were harmless). Just so here—with the difference

that § 242(a)(2)(B)(i) puts the decision beyond review,

and thus insulates the choices leading to that decision.

When a decision is unreviewable, any opinion one

way or the other on the propriety of the steps that led

to that decision would be an advisory opinion.

Id. at 775. 

This rationale, as the Leguizamo-Medina court implicitly

acknowledged, is in real tension with the holding

in Subhan. There we considered the question whether

section 1252(a)(2)(B)(i) barred consideration of an

IJ’s refusal to grant a continuance to an alien who

was waiting for the Department of Labor to issue a certificate allowing him to be employed in the United States.

383 F.3d at 593. The only comment the judge made as

he ruled on Subhan’s request was that Subhan

might eventually be able to acquire lawful permanent

resident status based on his employment, but that he

was not eligible yet for that relief. This, as we pointed
Nos. 10-2795 & 10-3973 13

out, was a statement of the obvious. It was a description

of what was going on, rather than an explanation or a

reason.

In finding this decision reviewable, and outside the bar

of (B)(i), we observed that Subhan was not asking us

to review an adjustment-of-status decision—something

that would have been barred by section 1255. Instead,

he was asking us to review the propriety of the continuance—that is to say, whether the Board’s decision to render

its final ruling on the merits of the 1255 petition when

it did was procedurally sustainable. (Part of our opinion

examined the question whether review was barred

by (B)(ii), but that is of no moment in the present case.)

We concluded that Congress would not have wanted “to

place beyond judicial review decisions by the immigration

authorities that nullif[y] the statute.” 383 F.3d at

595. Otherwise, “immigration judges [could] with

impunity refuse to grant one-week continuances to

persons in Subhan’s position. And that would sound the

death knell for the request, since unlike most grounds for

adjustment of status, adjustments based on employment,

like those based on marriage to a U.S. citizen, cannot

be pursued once the alien has been removed from

the United States.” Id. An allegation that the agency has

“nullified” a statute surely raises a legal question, cognizable under § 1252(a)(2)(D).

That conclusion alone would be enough to permit us to

see if a comparable problem taints either Calma’s or

Khomyshyn’s cases. There is more, however, that must be

said about the logic of the excerpt from Leguizamo-Medina
14 Nos. 10-2795 & 10-3973

that we have reproduced above. It is true, as the government argues, that Juarez and Pawlowska appear at first

blush to reaffirm Leguizamo-Medina even after Kucana. But

there is reason to question this conclusion. In Juarez, we

noted that in cases where jurisdiction exists to review the

underlying claim for relief, Kucana now requires the review

of denied continuances for abuse of discretion. See 599 F.3d

at 564-65. It was only in a footnote that the court suggested

that Leguizamo-Medina was “unaffected by Kucana.” Id. at

565 n.4. More importantly, Juarez was a case in which the

petitioners sought “various forms of relief from removal,”

at least one of which—asylum—was subject to judicial

review. 599 F.3d at 561. The comment about LeguizamoMedina was thus unnecessary to the outcome. There is also

less to Pawlowska than meets the eye. There, although the

IJ had denied a continuance where the underlying request

was for adjustment of status to permanent residence, there

was no need for this court to decide whether that denial

was reviewable, because the IJ had made clear that he

intended to exercise his discretion to deny the request for

adjustment because of previous visa fraud in any event.

623 F.3d at 1140. Only after concluding that this meritsbased reason was sufficient to preclude review did the

court comment that Leguizamo-Medina bars review of a

continuance decision that is “ancillary” to any of the forms

of relief mentioned in (B)(i). 

Other circuits have also stopped short of adopting the

strong version of Leguizamo-Medina. They have acknowledged an inability to review analogous cases without

concluding that the absence of jurisdiction over the merits
Nos. 10-2795 & 10-3973 15

of the final relief sought always bars review of procedural

requests like motions for a continuance or to reopen.

See, e.g., Alzainati v. Holder, 568 F.3d 844, 849-50 (10th Cir.

2009) (finding jurisdictional significance, for

§ 1252(a)(2)(B)(i) purposes, in the ground on which the

BIA bases its decision, reserving possibility of an embedded due process or other legal question); Vargas v.

Holder, 567 F.3d 387, 390 (8th Cir. 2009) (considering

implications of a broad view of jurisdiction-stripping

under (B)(i) for motions to reopen a proceeding

seeking relief for which review would be unavailable,

and rejecting such a rule); Obioha v. Gonzales, 431 F.3d

400, 405-06 (4th Cir. 2005) (acknowledging no jurisdiction

to review a decision to deny cancellation of removal, but

noting that the BIA “never got that far” and finding

reviewable its decision to deny a request to remand).

The common theme that runs through these cases is

the importance of the relation between the resolution of

the procedural request and the disposition of the underlying claim. The court’s inability to review the underlying

claim for relief “is, standing alone, an insufficient basis

to preclude review” of a related procedural motion.

Alzainati, 568 F.3d at 849. Instead, judicial review is foreclosed by § 1252(a)(2)(B)(i) only if the agency’s rationale

for denying the procedural request also establishes the

petitioner’s inability to prevail on the merits of his underlying claim. That was the case in Pawlowska, in which the

IJ’s decision rested on the petitioner’s fraud. See, e.g.,

Mariuta v. Gonzales, 411 F.3d 361, 365 (2d Cir. 2005)

(“Where a denial is based on the BIA’s ‘merits-deciding’

analysis of the alien’s entitlement to the ultimate
16 Nos. 10-2795 & 10-3973

relief sought, the denial [of a motion to reopen] may

properly be said to be a decision ‘under’ the statutory

provision providing that ultimate relief.”); Pilica v.

Ashcroft, 388 F.3d 941, 948 (6th Cir. 2004) (“[A] motion to

reopen that does not involve the consideration of relief on

the merits should not be treated as ‘regarding’ the granting

of [permanent residence].”). 

In keeping with this analysis, we have asserted jurisdiction to review procedural rulings like continuances in a

number of cases decided after Kucana. Thus, for instance,

in Vahora v. Holder, 626 F.3d 907 (7th Cir. 2010), we had

to decide whether we had jurisdiction to review an

IJ’s refusal to close a petitioner’s case administratively so

that it could be joined with his parents’ case. Noting

there that Kucana established the reviewability of an alien’s

request for a continuance, we applied similar reasoning to

administrative closures. Id. at 918. In Mozdzen v.

Holder, 622 F.3d 680 (7th Cir. 2010), we exercised jurisdiction over the denial of a continuance in circumstances quite

like those we face here—that is, a case in which there is no

jurisdiction to review the underlying claim for relief. The

Mozdzen petitioners sought a continuance to pursue

cancellation of removal or adjustment of status after having

committed visa fraud by falling into the trap laid by the

sting known as Operation Durango. Id. at 682; see also

Wroblewska v. Holder, 656 F.3d 473 (7th Cir. 2011). Even

though we would not have been able to review the petitioners’ applications for either cancellation or adjustment of

status, see 8 U.S.C. §§ 1229b and 1255, we said that “[w]e

review discretionary decisions such as denials of continuances under the deferential abuse of discretion standard.”
Nos. 10-2795 & 10-3973 17

Id. at 684. In the end, this did the Mozdzens little good, as

we went on to find no abuse of discretion, but this was a

ruling on the merits rather than a jurisdictional decision. 

We are persuaded that there are identifiable circumstances under which a critical procedural step in a removal

proceeding, such as the denial of a continuance that

is sought for purposes of allowing another agency

to complete its review, the denial of a motion to reconsider,

a refusal to remand, or a refusal to reopen a case, lies

within our jurisdiction even though we are barred

from evaluating the BIA’s ultimate decision in the circumstances spelled out in § 1252(a)(2)(B)(i). [Because this

opinion reconciles several competing lines of authority

within the circuit, it has been circulated to all active judges

pursuant to Circuit Rule 40(e). No judge in active service

voted to hear these cases en banc.] Sometimes review will

be possible because, as in Subhan, the challenged action

effectively nullifies the statutory scheme and thus for

all practical purposes raises a question of law. Sometimes

review will be possible because, as in Juarez, the request

for the unreviewable relief will be coupled with a request

for relief like asylum that is reviewable. If, however, it

is impossible to distinguish the challenged action from the

determination on the merits, then jurisdiction is lacking

and the petition must be dismissed.

It is worth recalling that a central theme in Kucana

was the importance of judicial review to protect the

procedural fairness of the agency process. As the Supreme

Court put it, motions to reopen are a “procedural device

serving to ensure that aliens are getting a fair chance to
18 Nos. 10-2795 & 10-3973

have their claims heard.” 130 S. Ct. at 837. This purpose

is, if anything, even more important for aliens like Calma

and Khomyshyn who will be strictly barred from

seeking review of the denial of their claims for adjustment

of status. Kucana emphasized “the presumption favoring

judicial review of administrative action.” Id. at 839. It

noted that “[w]hen a statute is reasonably susceptible to

divergent interpretation,” it should be construed in a way

that permits review. Id. The provision here,

§ 1252(a)(2)(B)(i), prohibits judicial review of decisions on

adjustment of status, but it says nothing about review

of antecedent procedural decisions such as continuances

that shape the final outcome. We note that our

sister circuits have come to conflicting results on

the question whether judicial review is ever available

in cases where review of the underlying claim for relief

is foreclosed. Compare Thimran v. Holder, 599 F.3d 841,

845 (8th Cir. 2010) (yes), with Freeman v. Holder, 596

F.3d 952, 956 n.2 (8th Cir. 2010) (no); and compare Assaad

v. Ashcroft, 378 F.3d 471, 474 (5th Cir. 2004) (per

curiam) (no), with Rodriguez v. Ashcroft, 253 F.3d 797, 800

(5th Cir. 2001) (yes, unless the Board addressed the merits

of the request for relief). 

We should not confuse the unavailability of judicial

review with the unimportance of the kinds of relief that

are covered by § 1252(a)(2)(B)(i): waivers of inadmissibility

(§§ 1182(h) and 1182(i)); cancellation of removal (§ 1229b);

voluntary departure (§ 1229c); and adjustment of status

(§ 1255). These are all measures that Congress has chosen

to make available to deserving aliens; it has simply chosen

at the same time to make the competent agency’s decision
Nos. 10-2795 & 10-3973 19

on the merits of those types of relief final. Sometimes,

when a continuance is requested, the court may not

even know what is at stake. If, for example, an alien

has appeared before an IJ asking both for asylum (a

reviewable decision) or voluntary departure (a nonreviewable decision), and asks the IJ for a continuance so

that she can decide which one to pursue, the grant

or denial of such a continuance can be reviewed without

upsetting the ultimate finality of the decision on the merits.

Jurisdiction is something that must be ascertainable ex

ante; it cannot depend on events that occur months or years

after the petition is filed. 

In summary, decisions like the rulings on continuances

that Calma and Khomyshyn have challenged, which do

not implicate the merits of a final unreviewable order

but instead merely defer the resolution of the merits so that

the process as a whole can be completed with integrity,

may in the right circumstances, and do here, fall within

our jurisdiction. Dave v. Ashcroft, 363 F.3d 649, if it

survived Kucana, is distinguishable from the cases before

us because all three of the decisions at issue in Dave—a

ruling on cancellation of removal, a ruling on a motion

to reconsider the denial of cancellation, and a ruling on the

refusal to reopen the proceeding—were closely linked

with the merits of the unreviewable decision on cancellation. And Huang v. Mukasey, 534 F.3d 618 (7th Cir.

2008), relied entirely on the decision in Kucana from this

court that the Supreme Court reversed. See 533 F.3d

534 (7th Cir. 2008). Having satisfied ourselves that we

have jurisdiction over these petitions, we can move on to

the merits.
20 Nos. 10-2795 & 10-3973

III

Unfortunately for both petitioners, our discussion

here will be brief. The standard of review, as we have

already noted, is one that gives great deference to the

responsible IJ. An IJ has the discretion to grant a continuance for “good cause shown,” see 8 C.F.R. § 1003.29, but

as long as he gives a reason for his decision, this court

will uphold the decision “unless it ‘was made without a

rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such

as invidious discrimination against a particular race or

group.’ ” Victor v. Holder, 616 F.3d 705, 708 (7th Cir.

2010), quoting Achacoso-Sanchez v. INS, 779 F.2d 1260,

1265 (7th Cir. 1985); see Subhan, 383 F.3d at 595. In addition, the principle of harmless error applies to administrative proceedings in general, and to immigration rulings

in particular. See Yuan v. Att’y Gen. of the United States,

642 F.3d 420, 427 (3d Cir. 2011); Victor, 616 F.3d at 710;

Japarkulova v. Holder, 615 F.3d 696, 701 (6th Cir. 2010);

Alam v. Gonzales, 438 F.3d 184, 187-88 (2d Cir. 2006);

Ngarurih v. Ashcroft, 371 F.3d 182, 191 n.8 (4th Cir. 2004). 

In Calma’s case, it is the harmless error principle that

dooms his effort to move ahead with his petition. The

Board has already dismissed Calma’s appeal from the

revocation of his son’s I-130 petition. That decision means

that Calma cannot show prejudice from the IJ’s denial

of his continuance motion. Without the successful I130 petition, he cannot adjust his status. See 8 U.S.C.

§ 1255(a); Lockhart v. Napolitano, 573 F.3d 251, 254 (6th

Cir. 2009); Afzal v. Holder, 559 F.3d 677, 678 (7th Cir.
Nos. 10-2795 & 10-3973 21

2009); Labojewski v. Gonzales, 407 F.3d 814, 822 (7th Cir.

2005). No amount of deferral of Calma’s proceedings

could have any effect on the final outcome. For this reason,

his petition for review must be denied.

Khomyshyn faces a different problem. The IJ in his case

provided a sound reason for denying the request for

a continuance. The judge explained that four years was

too long to wait to allow for Khomyshyn’s adjustment,

and he refused to speculate about the ultimate eligibility

of Khomyshyn’s wife for naturalization (not to mention

what steps on her husband’s behalf she would or

would not take if she attained U.S. citizenship).

Khomyshyn argues that the IJ ignored his argument

that his wife would soon be eligible for citizenship, but

the record does not support him. The IJ explicitly acknowledged this possibility, but then refused, in the absence

of any evidence that naturalization was necessarily forthcoming, to assume that it would come to pass. There was

no abuse of discretion in the IJ’s decision to take into

account the speculative nature of Khomyshyn’s hopes

for later adjustment, as well as the potentially lengthy time

that would elapse while he waited. 

For these reasons, we DENY both Calma’s petition for

review (No. 10-2795) and Khomyshyn’s petition for review

(No. 10-3973). 

12-13-11