2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-2-2010

Singh v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2973

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 08-2973

____________

BIKRAMJIT SINGH, 

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,

 Respondent

____________

On Petition for Review from an

Order of the Board of Immigration Appeals

(Board No. A79-138-338)

Immigration Judge: Honorable Elizabeth Kessler

____________

Submitted Under Third Circuit LAR 34.1(a)

October 22, 2010

Before: HARDIMAN, GREENAWAY, JR. and NYGAARD, Circuit Judges.

(Filed: November 2, 2010)

____________

OPINION OF THE COURT

____________

HARDIMAN, Circuit Judge.

Bikramjit Singh petitions for review of an order of the Board of Immigration 

Appeals (BIA) affirming the decision of the Immigration Judge (IJ) denying Singh‟s 

motion to continue his removal proceeding. We will deny the petition.
2

I.

Because we write for the parties, we recount only the facts and procedural history 

necessary to our decision.

A native and citizen of India, Singh was admitted to the United States in 1998 as a 

nonimmigrant visitor, for a period not to exceed three months. He stayed beyond that 

period working as a chef in Indian restaurants and eventually began the process to adjust 

his status, allowing him to work legally in the United States. His first employer filed a 

labor certification pursuant to 8 U.S.C. § 1182(a)(5)(A)(i) in April 2001, which was 

approved by the Department of Labor in July of that year. Singh then changed employers 

and his second employer filed a new labor certification in the summer of 2002, which was 

approved that December. However, in October, 2002, the former Immigration and 

Naturalization Services (INS) commenced removal proceedings by filing a Notice to 

Appear in immigration court.

In January 2003, Singh‟s second employer filed an I-140 visa petition on Singh‟s 

behalf. When Singh appeared before the IJ in May 2003, he admitted the factual 

allegations in the Notice to Appear, conceded removability, and requested a continuance 

of his removal proceedings pending the adjudication of his I-140. Singh‟s case was 

continued and he next appeared before the IJ in November 2003, but his I-140 was still 

pending. At that hearing, the IJ determined that Singh would be in the third preference 

category for visas (as an Indian chef, a skilled worker) and continued the hearing again. 

The second I-140 was finally approved in February 2004.
3

Singh then filed an I-485, Adjustment of Status application. On August 26, 2005, 

Singh appeared again before the IJ, who said he could not move forward on the I-485 

Adjustment of Status application because no third preference visas were then available 

for Singh‟s priority date (June 17, 2002). Accordingly, the IJ granted another 

continuance and told Singh to be re-fingerprinted before the next hearing, since the 

fingerprints on file were out of date.

The record is unclear as to when Singh left his second employer, but it was 

apparently around September 2005. On October 12, 2005, the Immigration Court 

received a letter dated September 28, 2005 from Singh‟s second employer withdrawing 

the I-140 visa petition. Evidently, however, no copy of this letter was sent to Singh or the 

Department of Homeland Security (DHS). Prior to yet another IJ hearing on September 

22, 2006, Singh filed a motion for continuance because no visa was then available to him. 

Two days before the hearing, when Singh‟s attorney called to inquire as to the status of 

the motion, he was informed of Singh‟s second employer‟s withdrawal of the I-140 visa 

petition. Singh then acquired a letter from his third employer, who indicated an intent to 

file another I-140 and personally appeared at the next hearing.

On September 22, 2006, the IJ held a hearing and issued an oral decision denying 

Singh‟s motion for continuance and I-485 Adjustment of Status application. The IJ 

denied the motion for continuance because she found that Singh was not then eligible for 

the relief he was seeking, stating: (1) “a new I-140 has not been filed for him. It is 

speculative at this point whether or not [a new I-140] would be approved;” and (2) “there 
4

is not a Visa currently available in the category in which he‟d be seeking one.” IJ 

Opinion 4. The IJ denied the I-485 Adjustment of Status application, which she deemed 

was abandoned because (1) “the Respondent has failed to comply with the fingerprinting 

requirements;” and (2) “the petitioner [the second employer] withdrew the [I-140 visa] 

petition [so that there was] no current petition on which the Court could adjust status.” 

Id. The IJ also expressed concern about whether Singh and his counsel had been candid 

with the Court, since the motion for continuance made no mention of the fact that Singh 

had changed jobs approximately a year earlier. Id.

Singh timely appealed the IJ‟s decision to the BIA. The DHS moved for a 

summary affirmance and Singh sought a remand. On June 5, 2008, the BIA dismissed the 

appeal in a per curiam order—holding that Singh had failed to establish good cause to 

grant a continuance—and denied his motion for remand—since no visas were available 

for his priority date of June 17, 2002.

Singh now appeals the BIA‟s order, arguing that the IJ abused her discretion and 

violated his due process rights in denying his motion for continuance and his I-485 

Adjustment of Status application.

1

II.

 

1

Singh has not appealed the BIA‟s denial of his motion for remand, and therefore 

has waived that claim on appeal. Holk v. Snapple Beverage Corp. 575 F.3d 329, 337

n.5 (3d Cir. 2009) (“We have held that „[a]n 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.‟”) (quoting Laborers’ Int’l Union v. Foster Wheeler 

Corp., 26 F.3d 375, 398 (3d Cir. 1994)).
5

Where, as here, the BIA adopts and affirms the decision of the IJ, we review the 

decision of the IJ. Khan v. Att’y Gen., 448 F.3d 226, 233 (3d Cir. 2006) (citing Dia v. 

Ashcroft, 353 F.3d 228, 247 (3d Cir. 2003) (en banc)). An IJ “may grant a motion for 

continuance for good cause shown,” 8 C.F.R. § 1003.29, and we review a denial of a 

continuance for abuse of discretion. Ponce-Leiva v. Ashcroft, 331 F.3d 357, 377 (3d Cir. 

2003). “„The question of 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, 331 F.3d at 377 (quoting Baires v. INS, 856 F.2d 89, 91 

(9th Cir. 1988)).

We review due process claims arising from immigration appeals de novo. 

Abdulrahman v. Ashcroft, 330 F.3d 587, 595-96 (3d Cir. 2003).

A.

Singh‟s due process argument is unavailing because he has no liberty or property 

interest in the outcome of a discretionary decision by an IJ. “[A] cognizable liberty or 

property interest must exist in the first instance for a procedural due process claim to lie.” 

Mudric v. Att’y Gen., 469 F.3d 94, 98 (3d Cir. 2006). Here, Singh sought a continuance 

based on his desire to adjust his immigration status. Ordinarily, the Attorney General has 

discretion to adjust an alien‟s status. See 8 U.S.C. § 1255(a); Mudric, 469 F.3d at 98-99. 

Likewise, the IJ has discretion and “may „grant a motion for continuance for good cause 

 
6

shown.‟” Hashmi v. Att’y Gen., 531 F.3d 256, 259 (3d Cir. 2008) (quoting 8 C.F.R. § 

1003.29). When the decision to grant or withhold a benefit is entrusted to the discretion 

of a government actor, one has no constitutional property interest in obtaining that relief. 

Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458, 465 (1981). Nor do we find any 

support for the notion that Singh had a constitutionally protected liberty interest. 

Accordingly, his due process claim fails. See Mudric, 469 F.3d at 99 (noting that the 

petitioner “simply had no due process entitlement to the wholly discretionary benefits of 

which he [was] allegedly deprived.”).

B.

We next consider Singh‟s argument that the IJ abused her discretion by denying 

his motion for continuance. The IJ found there were no visas available for Singh‟s 

priority date, and we find no error in that decision.

As Singh acknowledges, “the Immigration Judge is not required to continue a case 

if no immediate visas are available in principle.” Pet‟r. Br. 9. The lack of immediately 

available visas for Singh‟s priority date was, in and of itself, sufficient reason for the IJ to 

deny a continuance. Matter of Quintero, 18 I. & N. Dec. 348, 350 (BIA 1982) (“[T]he 

fact that the respondent has an approved visa petition does not entitle him to delay the 

completion of deportation proceedings pending availability of a visa number.”); see also

Khan, 448 F.3d at 235 (holding that the IJ had not abused his discretion by denying a 

continuance when the petitioner failed to show that “a visa is „immediately available‟ to 

him or even that one will be available to him at some estimable time in the future”); 
7

Ponce-Leiva, 331 F.3d at 377 (affirming the IJ‟s denial of a continuance for the alien to 

obtain counsel when “one of the circumstances which the immigration judge apparently 

factored into his decision to deny the continuance was the facial lack of merit in PonceLeiva‟s application for asylum” (emphasis added)).

2

Having found that the unavailability of visas for Singh‟s priority date was 

sufficient reason for the IJ to deny his motion for continuance, we need not address 

Singh‟s arguments regarding the portability of his previously-approved I-140 visa petition 

or the abandonment of his I-485 Application for Adjustment of Status. Even had the 

previously-approved I-140 and its priority date been deemed portable, no visas were 

available. Further, as discussed above, the IJ enumerated multiple reasons for denying 

the motion for continuance, one of which was that “there is not a Visa currently available 

in the category in which he‟d be seeking one.” IJ Opinion 4. The lack of an available 

visa is also a sufficient reason for the IJ‟s denial of Singh‟s Application for Adjustment of 

Status. Because the IJ found there was no available visa—a proper basis for denying the 

 

2

Subsequent to its ruling in this case, the BIA provided a non-exhaustive list of 

factors for an IJ to consider in evaluating the propriety of a continuance: “(1) the DHS 

response to the motion; (2) whether the underlying visa petition is prima facie approvable; 

(3) the 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 other procedural factors.” Matter of Rajah, 25 I. & N. 

Dec. 127, 130 (BIA 2009) (quoting Matter of Hashmi, 24 I. & N. Dec. 785,790 (BIA 

2009). The BIA also reiterated that a visa must be immediately available to establish 

eligibility for adjustment of status. Id. at 132, 134. We find no conflict between this 

subsequent holding and the IJ‟s decision in this case.
8

adjustment—before deeming the application abandoned,

3 we need not reach the question 

of whether that subsequent determination was in error.

For the foregoing reasons, we will deny Singh‟s petition for review.

 

3

“Also, there is not a Visa currently available in the category in which he‟d be 

seeking one. . . . The Court is also going to find that the Respondent‟s Application for 

Adjustment of Status is denied as abandoned.” IJ Opinion 4. “It is FURTHER 

ORDERED that the Respondent‟s Application for Adjustment of Status under INA 

Section 245 shall be denied and deemed abandoned.” Id. at 5 (emphasis added).