# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued March 27, 2012

Decided June 22, 2012

Before

JOEL M. FLAUM, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

JOHN DANIEL TINDER, Circuit Judge

No. 11

‐ 2649

MARIA VIOLETA LEGARDA,

Petitioner

,

v.

ERIC H. HOLDER, JR., Attorney

General of the United States,

Respondent

. Petition for Review of an Order of the

Board of Immigration Appeals.

No. A071 848 618

O R D E R

Maria Violeta Legarda petitions for review of a decision of the Board of Immigration

Appeals. The Board dismissed her appeal from an Immigration Judge’s denial of her motion

for a continuance to allow adjudication of her petition to remove conditions on residence.

Legarda contends that she was prima facie eligible for a waiver and showed good cause for

a continuance and that the Board erred in concluding that her conditional resident status

had terminated. We deny the petition. 

### NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 11

‐ 2649 Page 2

I.

Maria Violeta Legarda is a native and citizen of the Philippines who first entered the

United States in 1991 as a non

‐ immigrant visitor. In October 1991, she married a U.S. citizen,

he filed an I

‐ 130 visa petition on her behalf, and she filed an application for adjustment of

status based on their marriage. The petition and application were approved in February

1992, giving Legarda conditional permanent resident status under 8 U.S.C. § 1186a.

In December 1993, Legarda and her husband jointly filed an I

‐ 751 petition seeking

removal of the conditional basis of Legarda’s lawful residency. See 8 U.S.C. § 1186a(c)(1)(A).

Martial difficulties led to their separation and divorce, and in March 1998, Legarda’s former

husband withdrew his support for the I

‐ 751 petition. In March 1999, the District Director of

the Immigration and Naturalization Service (INS) deemed the joint petition withdrawn and

denied Legarda’s petition to remove conditions on residence, thus terminating her

conditional permanent resident status.

On June 29, 2000, the INS served Legarda with a Notice to Appear to answer a

charge of removability under section 237(a)(1)(B) of the Immigration and Nationality Act

(“INA”), 8 U.S.C. § 1227(a)(1)(B), as an alien who remained in the United States for a time

longer than permitted. In October 2001, Legarda filed a motion seeking the privilege of

voluntary departure. She also requested permission to file another I

‐ 751 petition to remove

conditions on her residence. The Board construed the petition as a request for a waiver of

the joint petition requirement. See 8 U.S.C. § 1186a(c)(4)(B). On October 22, 2001, Legarda

departed the United States for the Phillippines. She subsequently filed another motion for

voluntary departure, even though she had already departed. The motion stated that

Legarda “admits the allegations in the Notice to Appear served upon her on June 29, 2000

. .

. concedes that she was deportable and removable

. . . [and] waives and abandons any form

of relief other than voluntary departure.” On December 14, 2001, an immigration judge

(“IJ”) granted her request for voluntary departure. The time for appealing that decision (30

days) came and went.

On September 9, 2002, Legarda returned to the United States, represented that she

held conditional resident status, and was admitted. She was scheduled for an interview

regarding her second I

‐ 751 petition. She failed to appear and did not offer an explanation

for her absence or attempt to reschedule the interview. So, on November 3, 2004, the District

Director of U.S. Citizenship and Immigration Services (USCIS) denied her second I

‐ 751

petition, stating that “the conditional residence status previously accorded you is hereby

terminated as of this date.” The Director apparently was unaware that Legarda’s resident

status had already terminated.

In February 2007, Legarda filed a third I

‐ 751 petition. A receipt notice for the petition

automatically generated by USCIS purported to extend her conditional permanent resident

status for one year. See 8 C.F.R. § 1216.4(a)(1) (“Upon receipt of a properly filed Form I–751,No. 11

‐ 2649 Page 3

the alien’s conditional permanent resident status shall be extended automatically, if

necessary, until such time as the director has adjudicated the petition.”).

On October 31, 2007, the U.S. Department of Homeland Security served Legarda

with a Notice to Appear, charging her with removability under section 237(a)(1)(D)(i) of the

INA, 8 U.S.C. § 1227(a)(1)(D)(i), as an alien lawfully admitted with permanent resident

status on a conditional basis whose status had been terminated, and under section

237(a)(1)(A) of the INA, § 1227(a)(1)(A), as an alien who at the time of entry was

inadmissible. The IJ initially granted a 30

‐ day continuance to allow USCIS to rule on

Legarda’s third I

‐ 751 petition. Then in May 2009, he issued a decision, denying a further

continuance and finding Legarda removable. The IJ found that Legarda’s conditional

resident status had been terminated; that she was deportable and had been granted

voluntary departure; that she had departed the United States and re

‐ entered in September

2002 by misrepresenting herself as a conditional permanent resident; and that at the time

she did not possess or present a valid entry document. The IJ did not find Legarda

removable under section 237(a)(1)(D)(i) but found her removable under section 237(a)(1)(A),

§ 1227(a)(1)(A). He rejected Legarda’s argument that USCIS had to adjudicate the I

‐ 751

petition before she would be removable.

Legarda argued to the Board that the IJ erred in denying her request for a

continuance to await adjudication of her I

‐ 751 petition. The Board noted that generally

when an alien is prima facie eligible for a waiver, removal proceedings should be continued

to allow USCIS to adjudicate the petition. The Board found, however, that Legarda was not

prima facie eligible for a waiver because she did “not currently hold any form of resident

status” and upheld the IJ’s denial of a continuance. The Board further decided that even if

Legarda was prima facie eligible, she had not shown good cause for a continuance because

she did not present sufficient evidence of her likelihood of success on her waiver petition.

Lastly, the Board agreed that Legarda was removable for having been inadmissible at the

time of her reentry in 2002. Thus, the Board dismissed the appeal. Legarda petitioned for

judicial review.

II.

Legarda argues that the Board erred in dismissing her appeal of the IJ’s denial of a

continuance to allow adjudication of her third I

‐ 751 petition. She maintains that she showed

good cause for a continuance and was prima facie eligible for relief (waiver and removal of

conditions from her lawful resident status). She also argues that the Board erred in

dismissing her appeal of the denial of her request for removal of conditions on her resident

status.

On appeal to the Board, Legarda did not argue that the IJ erred in finding her

removable under section 237(a)(1)(A) of the INA, § 1227(a)(1)(A), as an alien who at the

time of entry was inadmissible. The Board, however, addressed the matter on its own. Thus,No. 11

‐ 2649 Page 4

the issue has been exhausted and is reviewable. Arobelidze v. Holder

, 653 F.3d 513, 517 (7th

Cir. 2011).

Likewise, here, Legarda has not challenged the Board’s conclusion that she was

removable under section 237(a)(1)(A), § 1227(a)(1)(A). This conclusion was based on the

determination that she no longer held conditional resident status. Legarda therefore has

forfeited any right to contest this independent basis for the Board’s decision, Tandia v.

Gonzales

, 487 F.3d 1048, 1052 (7th Cir. 2007); Huang v. Gonzales

, 403 F.3d 945, 951 (7th Cir.

2005), which is fatal to her petition for review.

We could stop here, but even setting forfeiture aside, the petition should be denied.

We review the denial of a continuance for abuse of discretion. Jonaitiene v. Holder

, 660 F.3d

267, 272 (7th Cir. 2011). The Board abuses its discretion if its decision is arbitrary, irrational,

or contrary to law. See Fessehaye v. Gonzales

, 414 F.3d 746, 752 n.5 (7th Cir. 2005). The Board’s

decision in this case was none of these. Instead, the Board correctly decided that Legarda

failed to show prima facie eligibility for relief.

A conditional permanent resident loses her status as a lawful permanent resident

upon the entry of a final administrative order of removal. Matter of Lok

, 18 I. & N. Dec. 101,

105 (BIA 1981). If “no appeal to the Board is taken,” an order of removal becomes

administratively final “when appeal is waived or the time allotted for appeal has expired.”

Id. In other words, an alien can no longer establish lawful permanent resident status upon

the entry of a final administrative order of removal. Id. at 107

‐ 08; see also 8 C.F.R. §

216.5(a)((2) (“A conditional resident who is in

. . . removal proceedings may apply for the

waiver [under section 216(c)(4) of the INA] only until such time as there is a final order of

. .

. removal.”). Legarda tries to distinguish Lok on the ground that the alien in that case fell

into a “unique category of immigrants,” but the category an alien is in has no bearing on the

issue of when an order of removal becomes administratively final.

The District Director terminated Legarda’s conditional permanent resident status in

1999. Although Legarda could have challenged that decision in removal proceedings, 8

C.F.R. § 1216.4(d)(2), she did not. Instead, she sought voluntary departure, waived and

abandoned any relief other than voluntary departure, and departed the United States. And

on December 14, 2001, the IJ entered an order granting her request for voluntary departure.

That order became administratively final at the latest when the time to appeal to the Board

expired in January 2002. See 8 C.F.R. §§ 1003.3(a)(1), 1003.38(b), 1240.53(a) (stating that an

appeal to the Board “shall be filed within 30 calendar days after the mailing of a written

decision” of an IJ). At that time, Legarda lost and could no longer establish lawful

permanent resident status. Thus, she had no lawful permanent resident status upon her

return to the United States in September 2002 and should not have been admitted.

Furthermore, she had no conditional lawful permanent resident status when in February

2007 she filed her third I

‐ 751 petition. Therefore, she was not prima facie eligible for the

relief she seeks, namely removal of conditions on her resident status.No. 11

‐ 2649 Page 5

Contrary to Legarda’s claim, both the Board and IJ explained why she would not be

prima facie eligible for a waiver. They concluded that her resident status previously had

been terminated. Indeed, the Board determined that her “conditional resident status

terminated with the expiration of the time to appeal the [IJ’s] December 14, 2001, order

granting her request for voluntary departure.”

Legarda asserts that “the primary purpose for the granting of a continuance is to

allow the Service [USCIS] to adjudicate the waiver application.” Although Legarda filed a

third I

‐ 751 waiver petition, there is nothing for USCIS to do other than deny her petition

because she no longer holds any resident status. The regulations concerning waivers

presume that the one applying for the I

‐ 751 waiver is a “conditional resident.” See 8 C.F.R.

§§ 216.5(a)(1) (“A conditional resident alien

. . . may file Form I

‐ 751[.]”), 1216.4(a)(1) (“[T]he

conditional permanent resident may apply for a waiver of the requirement to file the joint

petition[.]”). USCIS did issue Legarda a receipt notice for her third I

‐ 751 waiver petition,

purporting to extend her previously terminated conditional permanent resident status for

one year. But she has not responded to the argument or the Board’s conclusion that after the

termination of her status by the IJ’s final administrative order, USCIS had no jurisdiction to

admit her as a conditional permanent resident in 2002 or adjudicate her I

‐ 751 petition. In

other words, USCIS lacked authority to reinstate Legarda’s conditional resident status and

effectively override the IJ’s final decision terminating her resident status. Cf. Estrada

‐ Ramos

v. Holder

, 611 F.3d 318, 321 (7th Cir. 2010) (noting that “the BIA has held that ‘lawfully

admitted for permanent residence’ does not apply to aliens who ‘obtained their permanent

resident status by fraud, or had otherwise not been entitled to it’”) (quoting In re

Koloamatangi

, 23 I. & N. Dec. 548, 550 (BIA 2003)).

Because Legarda has not shown prima facie eligibility for a waiver, Matter of Stowers

,

22 I. & N. Dec. 605 (BIA 1999), and Matter of Mendes

, 20 I. & N. Dec. 833 (BIA 1994), which

she cites, are inapposite. Stowers holds that an alien may apply for waiver of the joint

petition requirements for removal of conditions on residence even after her conditional

resident status has been terminated by the INS (now USCIS). 22 I. & N. Dec. at 611

‐ 12. It

also holds that where an alien is prima facie eligible for a waiver, removal proceedings

should be continued to allow the INS (now USCIS) to decide the waiver application. Id. at

613

‐ 14. Mendes holds that where an alien in deportation proceedings has not filed a waiver

application and is prima facie eligible for such relief, the proceedings should be continued

to allow the alien to file an application and to allow the director to decide the application. 20

I. & N. Dec. at 840. In contrast, Legarda’s conditional resident status has been terminated

not only by USCIS but by an IJ’s final administrative order. Therefore, she no longer has any

status for which to seek removal of conditions and she is not prima facie eligible for a

removal of conditions on her residence. Accordingly, the Board did not abuse its discretion

in upholding the IJ’s denial of a continuance.

Nor did the Board abuse its discretion in finding that Legarda failed to show goodNo. 11

‐ 2649 Page 6

cause for a continuance. “A continuance requires a showing of good cause.” Mozdzen v.

Holder

, 622 F.3d 680, 684 (7th Cir. 2010); 8 C.F.R. § 1003.29. When an alien seeks a

continuance of removal proceedings to allow USCIS to decide a pending petition, an IJ

should focus on the likelihood of success on the petition, see Matter of Rajah

, 25 I. & N. Dec.

127, 130, 136 (BIA 2009); see also Pede v. Gonzales

, 442 F.3d 570, 571 (7th Cir. 2006) (noting the

“ultimate hopelessness” of an application was a “perfectly acceptable basis” for the IJ’s

denial of a request for a continuance), which requires some consideration of the petition’s

merits, Rajah

, 25 I. & N. Dec. at 136. Thus, the alien may be required to provide evidence of

eligibility for the relief sought, including the petition and relevant supporting documents.

See id. Legarda presented no such evidence, including evidence that her marriage was in

good faith.

For these reasons, the petition for review is D ENIED

.