At oral argument, we asked the parties to brief whether this case is moot because Wu 1

has been returned to China. Both parties responded that the case is not moot. We agree.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-60073

HING CHUEN WU, also known as HING CHEUN WU, also known as HUANG

CHEUNG WU, also known as HING C WU, also known as HING WU

Petitioner

v.

ERIC H HOLDER, JR., U S ATTORNEY GENERAL

Respondent

Petition for Review of an Order of the 

Board of Immigration Appeals

Before JOLLY, PRADO, and SOUTHWICK, Circuit Judges.

PRADO, Circuit Judge:

The sole question in this petition for review of a Board of Immigration

Appeals (“BIA”) decision is whether the Immigration Judge (“IJ”) abused his

discretion by denying Petitioner Hing Chuen Wu’s (“Wu”) motion for a third

continuance pending the adjudication of his wife’s I-130 visa petition. Wu relies 1

primarily on Matter of Garcia, 16 I. & N. Dec. 653 (BIA 1978), to argue that the

IJ erred in denying him a continuance. In Garcia, the BIA determined that

“discretion should, as a general rule, be favorably exercised where a prima facie

United States Court of Appeals

Fifth Circuit

F I L E D

June 11, 2009

Charles R. Fulbruge III

Clerk
No. 08-60073

2

approvable visa petition and adjustment application have been submitted in the

course of a deportation hearing or upon a motion to reopen.” Id. at 657.

However, an IJ would not abuse his discretion to deny a continuance “upon his

determination that the visa petition is frivolous or that the adjustment

application would be denied on statutory grounds or in the exercise of discretion

notwithstanding the approval of the petition.” Id.

Several circuits have ruled that, based on Garcia, an IJ abuses his or her

discretion by denying a motion to continue solely based on concerns of timing

when a nonfrivolous prima facie approvable I-130 petition is pending. For

example, in Hashmi v. Attorney General of the United States—which entailed

virtually the exact same facts as here—the Third Circuit recently ruled that “the

IJ abused his discretion when he denied Hashmi’s motion for a continuance

based solely on concerns about the amount of time required to resolve Hashmi’s

case.” 531 F.3d 256, 260 (3d Cir. 2008); see also Hassan v. INS, 110 F.3d 490,

492 (7th Cir. 1997) (“Significantly, an alien is generally entitled to the favorable

exercise of an IJ’s discretion regarding a request for a continuance where the

District Director has not yet adjudicated a prima facie approvable visa petition

and adjustment of status application.”); Bull v. INS, 790 F.2d 869, 872 (11th

Cir. 1986) (stating that “the fact that the petition for an immigrant visa had not

yet been approved at the time that Bull requested a continuance was not, in and

of itself, sufficient reason to deny the continuance”); cf. Del Rosario v. Mukasey,

295 F. App’x 180, 181 (9th Cir. 2008) (favorably citing Garcia for the proposition

that “the BIA shall generally grant a motion to reopen based on a spousal visa

petition where a prima facie approvable visa petition and adjustment of status

application have been submitted, unless clear ineligibility is apparent in the

record”); Pedreros v. Keisler, 503 F.3d 162, 165 (2d Cir. 2007) (“It is a matter of

long-standing and express BIA policy that, as a general matter, an alien is

entitled to a continuance of removal proceedings against him while a ‘prima facie
No. 08-60073

 At oral argument, the parties advised us that Wu’s wife’s I-130 petition was approved 2

during the pendency of this appeal.

3

approvable’ I-130 immigrant visa petition is pending in front of the District

Director.”).

The Government asserts that the IJ validly denied the motion for

continuance in this case because Wu did not submit any evidence that he had a

bona fide marriage to a U.S. citizen. Therefore, the Government contends, Wu

failed to meet his burden of showing a pending prima facie approvable I-130

application. But the IJ’s oral decision does not rest upon any documentary

failure regarding Wu’s proof of his bona fide marriage. Instead, the IJ ruled that

“[a]s of today’s date, counsel for [Wu] informed the Court that the application

was still pending approval. No concrete evidence was presented to the Court

which would indicate that approval of the petition was imminent.” The IJ and

the BIA did not challenge that Wu was married to a U.S. citizen, nor did either

question the merits of the I-130 petition. Thus, it appears that the IJ denied the

continuance solely based on concerns regarding the length of time it was taking

to process the I-130 petition. Under Garcia and the many circuit court cases

construing that decision, the IJ abused his discretion in relying upon the

delay—which seemingly was not even Wu’s fault—as the sole reason for denying

the motion for continuance.

Upon remand from the Third Circuit in Hashmi, the BIA recognized that

an IJ cannot rely solely on timing concerns and provided its first detailed

guidance of how an IJ should analyze a motion for continuance when a prima

facie approvable I-130 petition is pending. In re Hashmi, 24 I. & N. Dec. 785

(BIA 2009). The BIA stated that the IJ should evaluate the following five

factors: 

(1) the DHS’s position on the motion to continue; (2) whether the

underlying visa petition is prima facie approvable[ ]; (3) the 2
No. 08-60073

4

respondent’s statutory eligibility for adjustment of status;

(4) whether the respondent’s application for adjustment merits a

favorable exercise of discretion; and (5) the reason for the

continuance and any other relevant procedural factors.

Id. The BIA provided a detailed explanation of each of the five factors and noted

that the IJ also may consider other facts as appropriate. Id. at 790-94. At its

core, “the focus of the inquiry is the apparent ultimate likelihood of success on

the adjustment application.” Id. at 790. Given that the BIA found it prudent to

remand the case to the IJ for the initial consideration of these factors in Hashmi,

id. at 794, we take the same approach here. The IJ should have the initial

opportunity to implement the new factors that the BIA recently promulgated.

Accordingly, we hold that the IJ abused his discretion by denying Wu’s

motion for continuance solely based on the length of the delay in obtaining

approval of his wife’s I-130 application. Following the BIA’s recent guidance in

Hashmi, we remand to the BIA for the BIA to remand to the IJ for a

consideration of the Hashmi factors.

PETITION GRANTED; VACATED AND REMANDED.