2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-4-2011

Ilir Hoxha v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-2459

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1

- NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-2459

___________

ILIR HOXHA; FJORALBA HOXHA; BRENDA HOXHA,

Petitioners

v.

ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency Nos. A079-433-629, A079-433-630, & A079-433-631)

Immigration Judge: Honorable Michael W. Straus

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

May 2, 2011

Before: SLOVITER, CHAGARES and WEIS, Circuit Judges

 Opinion filed: May 4, 2011 

___________

OPINION

___________

PER CURIAM.

Lead petitioner Ilir Hoxha, along with his wife and daughter, petition for 

review of the Board of Immigration Appeals’ (“BIA”) April 30, 2010 decision dismissing 

their appeal from the Immigration Judge’s (“IJ”) decision denying a continuance in their 
2

asylum-only proceedings. For the reasons that follow, we will deny the petition. 

I.

Petitioners are natives and citizens of Albania. In January 2002, they 

entered the United States with fraudulent passports and sought admission under the Visa 

Waiver Program (“VWP”).1 When their admission was denied, they requested asylum 

and were placed in asylum-only proceedings.

At the first master calendar hearing, held on September 5, 2002, 

Petitioners’ attorney, John Manos, informed the presiding IJ, the Honorable Donald V. 

Ferlise that the asylum application had yet to be completed. As a result, IJ Ferlise 

continued the case and instructed Petitioners to submit their application at the next master 

calendar hearing, which was set for January 16, 2003. At the January 16, 2003 hearing, 

Mr. Hoxha filed an application for asylum, withholding of removal, and relief under the 

Convention Against Torture — listing his wife and daughter as derivatives — and IJ 

Ferlise scheduled Petitioners’ merits hearing for April 13, 2004.

On March 26, 2004, attorney Andre Michniak entered his appearance on 

Petitioners’ behalf and moved for a continuance, stating that Manos had “retired from 

 

1 Under the VWP, aliens from designated countries are allowed to visit the United States 

for ninety days or less without a visa. See 8 U.S.C. § 1187(a). Aliens who request 

admission under the VWP agree to waive any challenge to their removal; however, they 

may still seek asylum, withholding of removal, and relief under the Convention Against 

Torture (“CAT”). Shehu v. Att’y Gen. of the U.S., 482 F.3d 652, 655 (3d Cir. 2007) 

(citing 8 U.S.C. § 1187(b)). VWP applicants who request asylum, withholding of 

removal, and/or CAT relief are placed in “asylum-only” proceedings. Shehu, 482 F.3d at 

655.
3

private practice” and transferred the Petitioners’ case to him only a few days earlier. (See

Admin. R. at 359.) The IJ granted the motion and continued Petitioners’ merits hearing 

to December 6, 2005. Four days before this rescheduled hearing date, Michniak moved 

to withdraw as Petitioners’ counsel, averring that Mr. Hoxha had, inter alia, “recently 

made statements to Counsel which make it impossible for Counsel to continue with his 

representation.” (Id. at 335.) The IJ denied the motion.

Both Michniak and another attorney, Marco Pignone, III, appeared with 

Petitioners at the December 6, 2005 hearing.2 Michniak reiterated his request to 

withdraw — he alluded to an unspecified ethical concern — and informed the presiding 

IJ, the Honorable Michael W. Straus that Petitioners had retained Pignone the night 

before to represent them. When IJ Straus asked Pignone if he was ready to proceed, 

Pignone requested another continuance. The IJ denied this request, stating that “[t]here 

has already been a lengthy continuance in this case so whatever attorney it is we need to 

go forward today.” (Id. at 126.) The IJ subsequently asked Mr. Hoxha, “[W]ho do you 

want to represent you today?” (Id. at 131.) Mr. Hoxha elected to proceed with Pignone. 

The IJ then granted Michniak’s motion to withdraw and afforded Pignone fifteen minutes 

to confer with Mr. Hoxha. When the hearing resumed, the IJ proceeded to hear Mr. 

Hoxha’s testimony (the other two petitioners did not testify), which centered on 

allegations that he had suffered persecution on account of his membership in Albania’s 

 

2

 Although the transcript of the merits hearing bears a date of November 22, 2005, the 

parties submit, and the record otherwise reflects, that this hearing indeed took place on 

December 6, 2005.
4

Democratic Party.

At the end of the hearing, the IJ denied Petitioners’ application. The IJ 

concluded that Mr. Hoxha’s testimony lacked credibility, and that, even if the testimony 

had been credible, he had failed to establish past persecution. The IJ further concluded 

that, in light of the adverse credibility determination and the background evidence on 

Albania, Mr. Hoxha had failed to establish a well-founded fear of future persecution. 

Because the IJ determined that Mr. Hoxha had failed to satisfy the standard for asylum, 

the IJ held that he could not satisfy the higher standard for withholding of removal. The 

IJ also concluded that Mr. Hoxha had failed to show that he would likely be tortured 

upon returning to Albania.

Petitioners appealed the IJ’s decision to the BIA. The notice of appeal 

identified four arguments, one of which was that the IJ had erred in denying Petitioners’ 

motion for a continuance. Petitioners’ brief, however, addressed only the IJ’s denial of 

asylum and withholding of removal. On May 30, 2007, the BIA dismissed the appeal. In 

doing so, the BIA addressed only the IJ’s adverse credibility determination, concluding 

that it was “amply supported by the record.” (See id. at 75-76.)

Petitioners then petitioned this Court to review the BIA’s decision. That 

petition did not challenge the BIA’s decision upholding the IJ’s denial of asylum and 

withholding of removal; rather, it argued only that the IJ had erred in denying the motion 

for a continuance. On March 2, 2009, we held that Petitioners had exhausted this 

argument before the BIA by clearly identifying it in their notice of appeal. See Hoxha v. 
5

Holder, 559 F.3d 157, 163 (3d Cir. 2009). Because the BIA had not addressed this 

argument in its decision, we remanded the case so that the BIA could do so. See id. at 

163-64.

On remand, the BIA issued a decision on October 15, 2009, rejecting 

Petitioners’ continuance claim. The BIA concluded that Petitioners had “failed to 

articulate how the denial of [their] request for a continuance caused [them] actual 

prejudice and harm and/or materially affected the outcome of [their] application.” 

(Admin. R. at 46.) Petitioners did not petition this Court to review that BIA decision. 

Instead, they moved to reopen the proceedings before the BIA. They claimed that, 

although they had submitted a brief to the BIA before it had issued its October 15, 2009 

decision, that brief had not been made part of the administrative record and, thus, had not 

been considered by the BIA in rendering its decision.

On April 30, 2010, the BIA, exercising its sua sponte authority, reopened 

Petitioners case to consider the arguments in the aforementioned brief. The BIA 

concluded that, even in light of these new arguments, Petitioners’ continuance claim still 

failed. Petitioners now seek review of this most recent BIA decision.3

II.

An IJ “may grant a motion for continuance for good cause shown.” 8 

C.F.R. § 1003.29. In this case, the BIA, in its April 30, 2010 decision, concluded that the 

 

3

 We note that the instant petition mistakenly refers to the BIA’s April 30, 2010 decision 

as having been entered on May 30, 2010. 
6

IJ’s denial of Petitioners’ motion for a continuance was supported by the record, 

highlighting that (1) the IJ had previously granted Petitioners several continuances, (2) 

the IJ afforded Petitioners “ample opportunity” to present their claim during the 

December 6, 2005 hearing, and (3) Petitioners had failed to show that they were 

prejudiced by the denial of a continuance. (See Admin. R. at 3.) We have jurisdiction to 

review this BIA decision, and do so under an abuse of discretion standard. See Hashmi 

v. Att’y Gen. of the U.S., 531 F.3d 256, 259 (3d Cir. 2008). Under this deferential 

standard of review, we may not disturb the BIA’s decision unless it is “arbitrary, 

irrational or contrary to law.” See id. “The question whether denial of a continuance in 

an immigration proceeding constitutes an abuse of discretion cannot be decided through 

the application of bright-line rules; it must be resolved on a case by case basis according 

to the facts and circumstances of each case.” Ponce-Leiva v. Ashcroft, 331 F.3d 369, 377 

(3d Cir. 2003) (quotation marks and citation omitted).

Petitioners argue that the BIA erred in concluding that they were not 

prejudiced by the IJ’s denial of their motion for a continuance. They contend that, as a 

result of the IJ’s denial, Pignone had inadequate time to prepare for the merits hearing, 

which in turns affected the “quality” of Mr. Hoxha’s testimony. This argument is 

unavailing. Aside from suggesting that Mr. Hoxha would have correctly testified as to 

where and when he was married, Petitioners fail to identify any testimony that would 

have been different had the IJ granted a continuance. Moreover, Petitioners do not show 

how Mr. Hoxha’s ability to correctly recall the location and date of his wedding would 
7

have caused the IJ to find his testimony credible, let alone find past persecution or a wellfounded fear of future persecution. Although Petitioners allege that IJ Straus, who 

apparently was filling in for IJ Ferlise, denied their motion for a continuance in part to 

reign in IJ Ferlise’s “expanding” docket, we agree with the BIA that this allegation is 

“purely speculative with no basis in fact.” (See Admin. R. at 3.)

We have considered Petitioners remaining arguments and conclude that 

they lack merit.4 Accordingly, and in light of the above, we hold that Petitioners have 

failed to establish that the BIA erred in upholding the IJ’s denial of their motion for a 

continuance. As a result, we will deny the petition for review.5

 

4

 Although Petitioners seek to challenge the IJ’s denial of their asylum application, that 

decision is not properly before us. We note that Petitioners could have raised this 

challenge when they petitioned this Court to review the BIA’s May 30, 2007 decision; 

however, they elected not to do so. See Hoxha, 559 F.3d at 158; see also Laborers’ Int’l 

Union v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994) (“An issue is waived 

unless a party raises it in its opening brief, and for those purposes a passing reference to 

an issue will not suffice to bring that issue before this court.”) (internal quotation marks 

and citation omitted). 

5

 Petitioners have filed a “Motion to Correct Administrative Record,” requesting that the 

Government’s non-opposition to their motion to reopen the proceedings before the BIA 

be included in the administrative record. Because the Government’s non-opposition to 

Petitioners’ motion to reopen does not impact our analysis here — we note that the 

Government, in that same document, made clear that its non-opposition to the motion to 

reopen “does not constitute a non-opposition to [Petitioners’] applications for relief” —

we will deny the instant motion.