19-1410

Diarra Gakou v. Barr

BIA

Montante, IJ

A208 910 349

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER

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ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for 

the Second Circuit, held at the Thurgood Marshall United States 

Courthouse, 40 Foley Square, in the City of New York, on the

29th day of April, two thousand twenty.

PRESENT:

Guido Calabresi,

Richard C. Wesley,

Joseph F. Bianco,

Circuit Judges.

_____________________________________

MOHAMED DIARRA GAKOU, AKA MOHAMED 

DIARRA, AKA BAYAGI BATCHILLY, AKA 

MOHAMMED DIARRA, AKA CHERNO GAYE, 

AKA MOHAMAD DIARRA, AKA MUHAMMED 

DIARRA,

Petitioner,

v. 19-1410

WILLIAM P. BARR, UNITED STATES

ATTORNEY GENERAL,

Respondent.

_____________________________________

FOR PETITIONER: ROBERT F. GRAZIANO, ESQ., Buffalo, NY.

FOR RESPONDENT: NELLE M. SEYMOUR, Trial Attorney

(Jessica E. Burns, Senior Litigation 

Counsel, on the brief) for Joseph H. 

Hunt, Assistant Attorney General,

Washington, DC.
2

UPON DUE CONSIDERATION of this petition for review of a Board 

of Immigration Appeals (“BIA”) decision, it is hereby ORDERED, 

ADJUDGED, AND DECREED that the petition for review is GRANTED.

Petitioner Mohamed Diarra Gakou, a native and citizen of the 

Ivory Coast, seeks review of an April 19, 2019 decision of the BIA 

affirming a September 17, 2018 decision of an Immigration Judge 

(“IJ”) denying his motion to continue proceedings. In re Diarra 

Gakou, No. A 208 910 349 (B.I.A. Apr. 19, 2019), aff’g No. A 208 

910 349 (Immig. Ct. Buffalo Sept. 17, 2018). We assume the 

parties’ familiarity with the underlying facts and procedural 

history.

We have reviewed the IJ’s decision as modified and 

supplemented by the BIA. See Xue Hong Yang v. U.S. Dep’t of 

Justice, 426 F.3d 520, 522 (2d Cir. 2005). We generally “review 

the agency’s denial of a continuance for abuse of discretion,” 

Flores v. Holder, 779 F.3d 159, 164 (2d Cir. 2015), recognizing 

that “IJs are accorded wide latitude in calendar management,” 

Morgan v. Gonzales, 445 F.3d 549, 551 (2d Cir. 2006). Because 

Diarra Gakou was ordered removed on account of a firearm offense, 

however, our jurisdiction is limited to constitutional claims and 

questions of law, which we review de novo. 8 U.S.C. 

§§ 1227(a)(2)(C), 1252(a)(2)(C), (D); Pierre v. Holder, 588 F.3d 

767, 772 (2d Cir. 2009). Diarra Gakou’s argument that the agency 

abused its discretion by assessing his motion for a continuance 
3

under the wrong legal standard raises a question of law over which 

we retain jurisdiction. See Flores, 779 F.3d at 163 n.1.

An IJ has discretionary authority to grant a motion for a 

continuance “for good cause shown.” 8 C.F.R. § 1003.29. “The 

good-cause standard . . . requires consideration and balancing of 

all relevant factors in assessing a motion for continuance to 

accommodate a collateral matter.” In re L-A-B-R-, 27 I. & N. Dec. 

405, 413 (A.G. 2018). The BIA has provided the following nonexhaustive list of factors relevant to the determination of a 

motion for a continuance based on the movant’s intention to apply 

for adjustment of status:

(1) the [Government’s] response to the motion; (2) 

whether the underlying visa petition is prima facie

approvable; (3) the [movant’s] statutory eligibility for 

adjustment of status; (4) whether the [movant’s] 

application for adjustment merits a favorable exercise 

of discretion; and (5) the reason for the continuance 

and other procedural factors.

In re Hashmi, 24 I. & N. Dec. 785, 790 (B.I.A. 2009). The agency 

must consider the Hashmi factors in deciding a motion for a 

continuance. Freire v. Holder, 647 F.3d 67, 71 (2d Cir. 2011). 

The BIA has emphasized that “the focus of the inquiry” should 

be on “the likelihood of success on the adjustment application.” 

In re Rajah, 25 I. & N. Dec. 127, 136 (B.I.A. 2009); L-A-B-R-, 27 

I. & N. Dec. at 413 (“An immigration judge considering a motion 

for continuance to await the resolution of a collateral matter 

must focus principally on two factors: (1) the likelihood that the 
4

alien will receive the collateral relief, and (2) whether the 

relief will materially affect the outcome of the removal 

proceedings.”); Hashmi, 24 I. & N. Dec. at 790 (“[D]iscretion

should be favorably exercised where a prima facie approvable visa 

petition and adjustment application have been submitted in the 

course of an ongoing removal hearing.”). This Court’s precedent 

is in accord. See Pedreros v. Keisler, 503 F.3d 162, 165 (2d Cir. 

2007) (“[A]s a general matter, an alien is entitled to a 

continuance of removal proceedings against him while a ‘prima facie 

approvable’ I-130 immigrant visa petition is pending . . . .”). 

The BIA has also held, however, that these “primary” considerations 

“are not dispositive” and may be outweighed by “secondary” 

considerations, including a movant’s lack of diligence, the 

Government’s opposition, and concerns of administrative efficiency 

related to the length of the continuance request or the movant’s 

detained status. See In re Mayen-Vinalay, 27 I. & N. Dec. 755, 

757–60 (B.I.A. 2020); accord L-A-B-R-, 27 I. & N. Dec. at 412 

(“Good cause . . . may not exist when the alien has not demonstrated 

reasonable diligence in pursuing the collateral adjudication, DHS 

justifiably opposes the motion, or the requested continuance is 

unreasonably long, among other possibilities.”).

As a preliminary matter, to the extent that the IJ denied a 

continuance because he lacked discretion to do so, this was error. 

See 8 C.F.R. § 1003.29. However, by citing the regulation stating 
5

the good-cause standard and cases setting forth the proper multifactor standard for exercising discretion to grant a continuance, 

the BIA declined to affirm that portion of the IJ’s decision. See 

Xue Hong Yang, 426 F.3d at 522 (where the BIA affirms the IJ’s 

decision in some respects but not others, we review the IJ’s 

decision as modified by the BIA decision).

The BIA affirmed the IJ’s decision based on some of the 

relevant Hashmi factors: namely, that there had already been 

continuances granted, the case had been pending for more than one 

year, Diarra Gakou had sufficient prior opportunity to apply for 

relief, and his detained status. However, the BIA committed legal 

error by failing to evaluate the other Hashmi factors: 

particularly, whether Diarra Gakou’s visa petition was prima facie 

approvable, whether he was likely to successfully adjust status if 

the petition was approved, and if so, whether the factors that the 

agency relied on outweighed these “primary” considerations. See

Freire, 647 F.3d at 71; see also Mayen-Vinalay, 27 I. & N. Dec. at 

757 (the agency “must consider and balance all relevant factors in 

assessing whether there is good cause to continue proceedings to 

accommodate a collateral matter before another authority”

(internal quotation marks omitted)).

Although “an error does not require a remand if . . . it is 

clear that the agency would adhere to its prior decision in the 

absence of error,” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 
6

315, 338 (2d Cir. 2006), we cannot conclude that remand would be 

futile here. First, Diarra Gakou’s visa petition was prima facie 

approvable—and has, in fact, been approved. Second, although the 

BIA and the Government both emphasized that Diarra Gakou has not 

yet shown that he has filed an application for adjustment of 

status, and Hashmi directs that an IJ may require the application 

and supporting documents in order to establish prima facie 

eligibility for adjustment, 24 I. & N. Dec. at 792, Diarra Gakou 

argued before the agency that he was statutorily eligible for 

adjustment, and the IJ granted an initial continuance without 

questioning those arguments or finding that additional 

documentation was necessary to establish eligibility. 

Finally, the agency could conclude that Diarra Gakou’s 

adjustment application would be denied as a matter of discretion 

in light of his criminal history. See Pedreros, 503 F.3d at 166 

(IJ does not abuse discretion in denying a continuance “upon his 

determination . . . that the adjustment application would be denied 

. . . in the exercise of discretion notwithstanding the approval 

of the petition” (quoting In re Garcia, 16 I. & N. Dec. 653, 657 

(B.I.A. 1978)). But the agency did not reach that conclusion, and 

there are other factors that might warrant a favorable exercise of 

discretion despite Diarra Gakou’s criminal history: he has lived 

in the United States for 18 years, his wife and four-year-old child 

are U.S. citizens and his mother is a lawful permanent resident, 
7

he entered the United States legally as a minor, and he was only 

13 years old when his visa expired. Accordingly, although the 

factors that the agency previously relied upon could be sufficient 

to justify denial of a continuance even if it found that these 

primary factors favored grant of a continuance, see Mayen-Vinalay, 

27 I. & N. Dec. at 757–60, there remains a “realistic possibility 

of a different result on remand,” Xiao Ji Chen, 471 F.3d at 338. 

For the foregoing reasons, the petition for review is GRANTED, 

the BIA’s decision is VACATED, and the case is REMANDED for 

additional proceedings consistent with this order. Petitioner’s 

separate motion to remand is DENIED as moot.

FOR THE COURT: 

Catherine O’Hagan Wolfe,

Clerk of Court