PUBLISH

UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT 

MARGARITO ESCALERA LUEVANO, 

 Petitioner, 

v. 

ERIC H. HOLDER, JR., United States 

Attorney General, 

 Respondent.

No. 10-9547 

Appeal from the Board of Immigration Appeals 

Christopher J. Pooley, Law Office of Chris Pooley, Avon, Colorado, for Petitioner. 

Aimee J. Frederickson, Trial Attorney, (Tony West, Assistant Attorney General, and John 

S. Hogan, Senior Litigation Counsel, with her on the briefs), Office of Immigration 

Litigation, Civil Division, Washington, D.C., for Respondent.

Before KELLY, SEYMOUR, and O'BRIEN, Circuit Judges. 

O’BRIEN, Circuit Judge. 

Submitted on the Briefs*

 *

 Oral argument would not materially assist the determination of this appeal. See

Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). We have decided this case on the briefs. 

FILED 

United States Court of Appeals 

Tenth Circuit 

September 30, 2011

Elisabeth A. Shumaker 

Clerk of Court
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Margarito Escalera Luevano1

 applied for adjustment of status during his removal 

proceedings based on his eligibility for an immigrant visa. He also requested an 

indefinite continuance in anticipation of the receipt of a visa. The immigration judge (IJ) 

determined he was not then eligible for adjustment of status and denied the request for a 

continuance because the anticipated visa would not be available for several years. The 

Board of Immigration Appeals (BIA) affirmed. Escalera argues the IJ abused his 

discretion in denying the requested continuance. He also claims the removal proceedings 

against him should be terminated because his Fourth Amendment rights were violated so 

egregiously as to deny him due process.2

 

BACKGROUND 

Escalera entered the United States without inspection on March 1, 2001. His 

sister, a United States citizen, filed an I-130 visa petition for alien relative on his behalf in 

April of that year; it was later approved.3

 In September 2006, a van in which Escalera 

was riding with six other passengers was stopped by a park ranger at a sobriety 

 1

 He is referred to as Escalera in the appellate briefs. 

2

 Escalera also contends the Attorney General abused his discretion by bringing 

removal proceedings against him. We lack jurisdiction to review this claim. See 8 

U.S.C. § 1252(g) (“no court shall have jurisdiction to hear any cause or claim by or on 

behalf of any alien arising from the decision or action by the Attorney General to 

commence proceedings, adjudicate cases, or execute removal orders against any alien 

under this chapter”). 

3

 Approved visa petitions remain in processing until a visa is available. Because 

the number of visas that can be issued to siblings of United States citizens each year is 

limited by law, there is a backlog. The date on which the visa petition was filed becomes 

the beneficiary’s “priority date” and visas are issued in order of priority date as they 

become available. 
- 3 - 

checkpoint in Yellowstone National Park. Based on admissions he made at the scene, 

Escalera and his companions were each cited for evading immigration inspection in 

violation of 8 U.S.C. § 1325(a)(2). According to the probable cause statement on the 

back of the citation, the van was stopped at the sobriety checkpoint and its occupants, 

who were “under suspicion of being illegal aliens,” were interviewed by an Immigration 

and Customs Enforcement (ICE) agent. (R. at 45.) The statement does not indicate what 

caused the suspicion or whether the ICE agent was present at the sobriety checkpoint or 

was called to the scene at some point during the stop. It also does not indicate the length 

of the stop or the nature of the questioning. It does, however, indicate that all seven 

occupants of the van admitted to being in this country illegally. 

Escalera was cited by the ranger and released. The ICE agent at the scene did not 

issue a Notice to Appear (NTA) or take him into custody.4

 However, Escalera contends 

the U.S. Attorney offered to drop the charges contained in the criminal citation if he 

turned himself in to ICE officials at the Denver, Colorado, field office. When he 

appeared at the field office, ICE personnel issued an NTA and commenced removal 

proceedings against him. In a hearing before an immigration judge on December 11, 

2007, Escalera conceded removability, requested adjustment of status, and asked for a 

continuance to, inter alia, await eligibility for adjustment of status because of his pending 

visa petition. The IJ granted a continuance until September 2, 2008, so Escalera could 

request voluntary departure but specifically declined to grant a lengthy continuance based 

 4

 Because of its limited resources, ICE generally does not prioritize removal of 

aliens without criminal records who have approved visa petitions. 
- 4 - 

on the outstanding visa petition because the possibility of such relief was too remote -- at 

the time of the hearing the Department of Homeland Security was processing petitions 

with a priority date up to August 22, 1994, almost seven years before Escalera’s. At the 

September 2 hearing, the IJ granted another continuance so Escalera could apply for other 

forms of relief but again specifically refused to grant any continuance based on the 

outstanding visa petition. 

On September 23, Escalera admitted to the facts underlying the charge of illegal 

entry but withdrew his concession of removability because he believed the section of the 

Immigration and Nationality Act permitting adjustment of status rendered him 

nonremovable. He did not request voluntary departure. The IJ denied his request for 

adjustment of status because no visa number was available and then ordered removal. 

Escalera appealed to the BIA. Relevant here, he claimed the IJ abused his discretion in 

refusing the continuance based on the pending visa petition and argued the stop leading to 

the issuance of the NTA was unconstitutional. The BIA affirmed the IJ’s denial of the 

continuance and determined Escalera had not shown a violation of his constitutional 

rights. 

DISCUSSION 

 The BIA did not summarily affirm the IJ’s decision but issued a reasoned decision 

addressing Escalera’s arguments on appeal. We therefore review the BIA’s decision as 

the final order of removal and will not address the IJ’s decision except where the BIA has 

explicitly incorporated his reasoning. See Diallo v. Gonzales, 447 F.3d 1274, 1278-79 

(10th Cir. 2006). 
- 5 - 

In reviewing a decision of the BIA, we consider any legal questions de 

novo, and we review the agency’s findings of fact under the substantial 

evidence standard. Under that test, our duty is to guarantee that factual 

determinations are supported by reasonable, substantial and probative 

evidence considering the record as a whole. 

Id. at 1279. 

A. Due Process

Escalera claims his interrogation at the sobriety checkpoint was the result of racial 

profiling because his ethnicity was the only reason to suspect he was in the country 

illegally. He therefore claims the detention and questioning violated his constitutional 

rights. He requests dismissal of the proceedings against him as fruit of the poisonous 

tree. “Under 8 U.S.C. § 1252(a)(2), we have jurisdiction to review constitutional 

challenges and questions of law raised in a petition for review from a BIA decision.” NA-M v. Holder, 587 F.3d 1052, 1055 (10th Cir. 2009), cert. denied, 131 S. Ct. 898 (2011). 

We review due process claims de novo. Id. 

In INS v. Lopez-Mendoza, the Supreme Court decided the exclusionary rule does 

not apply in civil deportation proceedings. 468 U.S. 1032, 1050 (1984). “[E]vidence 

resulting from a search and seizure in violation of Fourth Amendment rights is not for 

that reason alone excludable from civil deportation proceedings.” In re Toro, 17 I. & N. 

Dec. 340, 343 (BIA 1980). However, under BIA procedure, evidence will be excluded if 

the “circumstances surrounding a particular arrest and interrogation would render use of 

the evidence obtained thereby ‘fundamentally unfair’ and in violation of due process 

requirements of the Fifth Amendment.” Lopez-Mendoza, 468 U.S. at 1051 n.5 (citing 

Toro, 17 I. & N. Dec. at 343). “One who raises the claim questioning the legality of the 
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evidence must come forward with proof establishing a prima facie case before the 

Service will be called on to assume the burden of justifying the manner in which it 

obtained the evidence.” In re Burgos, 15 I. & N. Dec. 278, 279 (BIA 1975). 

Escalera does not argue the stop itself, which occurred at 5:00 p.m., was illegal.5

 

Instead, he claims officers illegally prolonged his detention because of his race after the 

purpose of the sobriety checkpoint had been served. He claims there is no evidence in 

the record establishing a reasonable suspicion which would permit the ICE agent to 

detain him in order to inquire about his immigration status. He points to the absence of 

any factual basis in the probable cause statement explaining why the van’s occupants 

were “under suspicion of being illegal aliens.” (R. at 45.) However, he offers no 

evidence to support his argument. 

The BIA concluded the probable cause statement on the back of Escalera’s 

evading inspection citation did not show the sort of egregious circumstances necessary to 

trigger due process concerns.6

 The statement simply says the van in which he was riding 

was stopped, contained seven passengers suspected of being illegal aliens, an ICE officer 

interviewed them, and they admitted to being in the country illegally. 

 5

 He implies the sobriety checkpoint was some sort of pretext and asks us to take 

judicial notice of “happy hour,” which, according to Wikipedia, occurs between four and 

seven in the evening. We need not consider whether this is the type of fact of which 

judicial notice can be taken because, standing alone, it has no relevance whatsoever. 

6

 Escalera also contends the IJ violated his due process rights by not allowing him 

to build a record with respect to his Fourth Amendment claim. He did not raise this issue 

before the BIA and, in any case, the “evidence” he complains should have been included 

in the record is attached to his brief on appeal and, if considered, would not remedy the 

fundamental flaws in his argument. 
- 7 - 

Escalera did not testify at the proceedings before the IJ other than to verify his 

name. The lone affidavit he submitted says only that he believed he was not free to leave 

after the van was stopped. It sets forth no information regarding the stop and presents no 

facts to show he was detained before he admitted to illegal entry, let alone that any 

detention was extended because of his race. His “offer of proof in support of his motion 

is a mixed legal and factual declaration by counsel, not based on counsel’s personal 

knowledge and never corroborated personally by the respondent.” Matter of RamirezSanchez, 17 I. & N. Dec. 503, 505 (1980). Counsel’s arguments are not evidence. Id. 

In any case, Escalera does not request suppression of specific evidence. His brief 

is not a picture of clarity on this issue but he appears to want us to classify the 

proceedings themselves as fruit of the poisonous tree because he was coerced through the 

illegal stop and citation to turn himself in to the Denver field office. This is the exact 

relief requested in Lopez-Mendoza where “Lopez-Mendoza objected only to the fact that 

he had been summoned to a deportation hearing following an unlawful arrest; he entered 

no objection to the evidence offered against him.” Lopez-Mendoza, 468 U.S. at 1040. 

The Supreme Court concluded a Fourth Amendment violation could not be used to 

deprive the immigration court of jurisdiction. Id. 468 U.S. at 1040; see also United 

States v. Olivares-Rangel, 458 F.3d 1104, 1110 (10th Cir. 2006) (discussing LopezMendoza and concluding “[b]ased on the cases the Court cited, it appears that the 

majority was referencing the long-standing rule, known as the Ker-Frisbie doctrine, that 

illegal police activity affects only the admissibility of evidence; it does not affect the 

jurisdiction of the trial court or otherwise serve as a basis for dismissing the 
- 8 - 

prosecution”). The BIA did not err in concluding Escalera had not shown a due process 

violation. Had he shown such a violation, he would be entitled to suppression of the 

evidence, but we could not grant the relief he requests – dismissal of the proceedings. 

B. Motion for Continuance

In Yerkovich v. Ashcroft, 381 F.3d 990, 995 (10th Cir.2004), we held that 8 

U.S.C. § 1252(a)(2)(B)(ii) bars review of the IJ’s discretionary decision 

denying petitioner’s motion for a continuance. See also 8 C.F.R. § 1003.29 

(“The Immigration Judge may grant a motion for continuance for good 

cause shown.”). The Supreme Court, however, recently held that decisions 

made discretionary by regulation do not come within that statutory bar and 

are reviewable. See Kucana v. Holder, --- U.S. ---, 130 S. Ct. 827, 831, 175 

L.Ed.2d 694 (2010). Because an IJ’s discretion to deny a request for a 

continuance arises from a regulation, 8 C.F.R. § 1003.29, we possess 

jurisdiction to consider the denial of [a] motion for continuance under 

Kucana. 

We review the decision to deny . . . a continuance for an abuse of 

discretion. Only if the decision was made without a rational explanation, 

inexplicably departed from established policies, or rested on an 

impermissible basis, will we grant the petition for review. 

Castillo-Torres v. Holder, 394 Fed. Appx. 517, 522 (10th Cir. 2010) (unpublished) 

(quotation and citation omitted).7

 

Under 8 U.S.C. § 1255(i), an alien with an outstanding I-130 visa petition filed on 

his behalf on or before April 30, 2001, who is physically present in the United States may 

pay a fee and apply for adjustment of status. 

Upon receipt of such an application and the sum hereby required, the 

Attorney General may adjust the status of the alien to that of an alien 

lawfully admitted for permanent residence if-- 

(A) the alien is eligible to receive an immigrant visa and is admissible to 

 7

 Unpublished opinions are not binding precedent. 10th Cir. R. App. P. 32.1(A). 

We mention Castillo-Torres because of its persuasive reasoning. 
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the United States for permanent residence; and 

(B) an immigrant visa is immediately available to the alien at the time the 

application is filed.

8 U.S.C. § 1255(i)(2) (emphasis added). Petitioning for adjustment of status is a defense 

in removal proceedings. If the petitioner qualifies, removal proceedings may be 

terminated and the alien may be granted lawful status. The petitioner has the burden to 

establish his adjustment eligibility. See Matter of Hashmi, 24 I. & N. Dec. 785, 789 (BIA 

2009). 

According to the BIA, discretion to grant a continuance should generally be 

exercised favorably for aliens awaiting the adjudication of a pending I-130 petition. Id. at 

788 (quoting Matter of Garcia, 16 I. & N. Dec. 653 (BIA 1978)). “At the same time, it is 

well established that Garcia does not require the Immigration Judge to grant a 

continuance in every case where there is a pending visa petition.” Id. at 790. An IJ 

should first determine an alien’s place in the adjustment process and then consider 

whether to grant a continuance. 

In determining whether to continue proceedings to afford the respondent an 

opportunity to apply for adjustment of status premised on a pending visa 

petition, a variety of factors may be considered, including, but not limited 

to: (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. These factors are illustrative, 

not exhaustive. While all these factors may be relevant in a given case, the 

focus of the inquiry is the apparent ultimate likelihood of success on the 

adjustment application. 

Id. Escalera’s argument that 8 U.S.C. § 1255(i) permits him to remain in the country 
- 10 - 

awaiting eligibility for adjustment is without merit. “The fact that an alien is 

grandfathered [by having a timely filed petition] for [section 1255(i)] purposes does not 

entitle the alien to adjust status or to remain in the United States while seeking 

adjustment of status.” Matter of Rajah, 25 I. & N. Dec. 127, 134 (BIA 2009). “A 

respondent who has a prima facie approvable [visa petition] and adjustment application 

may not be able to show good cause for a continuance because visa availability is too 

remote. See, e.g., Chacku v. U.S. Attorney Gen., 555 F.3d 1281 (11th Cir. 2008) (finding 

that no good cause was shown for a continuance where the alien’s priority date was years 

in advance of current visa availability).” Id. at 136. 

Escalera’s visa petition has already been adjudicated and is approved. However, a 

limited number of approved petitions are granted visas each year. Visas are not being 

issued for petitions with his priority date (the date on which his petition was filed) 

because visa numbers are not available due to the backlog of petitions. Because his 

petition is through a sibling, Escalera’s preference category is F4. Only 65,000 F4 visas 

may be issued each year, unless there are unused petitions in higher preference 

categories, which can spill over into lower priority categories if not used. On September 

23, 2008, the date the IJ refused to grant the continuance, the Department of State Visa 

Bulletin shows processing of petitions with priority dates up to January 15, 1995. The 

May 2011 Visa Bulletin reports F4 visas from Mexico with a priority date up to February 

15, 1996, were being processed at that time. Priority dates have advanced just over one 

year in this three-year period. Escalera’s priority date is April 30, 2001. 

Although the agency cases permit, and may even require, an IJ to continue 
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proceedings in order to await mere processing of a properly filed visa petition with a 

current priority date, there is no agency or court precedent for requiring an IJ to grant an 

indefinite continuance so that a petitioner may remain in this country while awaiting 

eligibility for adjustment of status. Escalera was not eligible for adjustment relief at the 

time of his removal proceedings. See Chacku v. U.S. Attorney Gen., 555 F.3d 1281, 1286 

(11th Cir. 2008), (“[T]he IJ did not abuse his discretion in denying the motion for a 

continuance, nor did the BIA err in dismissing Chacku’s appeal, because Chacku was not 

statutorily eligible for an adjustment of status on December 7, 2006, the day he filed his 

adjustment application, as he did not have an immigrant visa immediately available to 

him at this time.”). Moreover, Escalera was unlikely to be eligible within a reasonably 

proximate time. 

The petition for review is DENIED. Escalera’s motion to stay removal is also 

DENIED. Escalera’s motion to file his corrected reply brief is GRANTED.