20

- 2095

- ag Khan v. Garland

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 FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT ’ S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NO TATION “ SUMMARY ORDER ” ). A PARTY CITING A SUMMARY 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, 1 held at the Thurgood Marshall United States Courthous e, 40 Foley Square, in the 2 City of New York, on the 2 2 n d d ay of S e p t e m b e r , two thousand twenty

- two

. 3 4 PRESENT: REENA RAGGI , 5 RICHARD C. WESLEY, 6 RAYMOND J. LOHIER, JR. , 7 Circuit Judges

. 8

------------------------------------------------------------------ 9 MOHAMMAD YOUSAF KHAN , 10 11 P etitioner , 12 13

v. No. 2 0

- 2095

- ag 14 15 MERRICK B. GARLAND, UNITED STATES 16 ATTORNEY GENERAL , 17 18 Respondent

. 19

------------------------------------------------------------------ 20 212 FOR PETITIONER : Tejinder Bains, Ali and Bains, 1 P.C., Forest Hills, NY 2 3 FOR RESPONDENT : Jaclyn G. Hagner, Attorney, 4 Sabatino F. Leo, Assistant 5 Director, Office of Immigration 6 Litigation , for Brian Boynton, 7 Acting Assistant Attorney 8 General, Civil Division, United 9 States Department of Justice, 10 Washington, DC 11 12 UPON DUE CONSIDERATION of this petition for review of a Board of 13
Immigration Appeals (“BIA”) decision, IT IS HEREBY ORDERED, ADJUDGED, 14
AND DECREED that the petition for review is DENIED. 15

Petitioner Mohammad Yousaf Khan , a native and citizen of Pakistan, seeks 16

review of a June 3, 2020 decision of the BIA affirming a May 22, 2018 decision of 17
an Immigration Judge (“IJ”) , which denied his motion for a continuance and 18

ordered removal. See In re Mohammad Yousaf Khan , No. A079 125 980 ( B.I.A. 19
June 3, 2020), aff ’g No. A079 125 980 ( Immig. Ct. N.Y.C. May 22, 2018). We 20
assume the parties’ familiarity with the underlying facts and the record of prior 21
proceedings, to which we refer only as necessary to explain our decision to deny 22
the petition

. 23

Khan entered the United States unlawfully in 1998 and was placed in 243 removal proceedings in 2006. Over the following twelve years, he sought 1
continuances of those proceedings based on , among other things, visa petitions 2
filed on his behalf by his second and th ird wives , who were United States 3

citizens. 1 As relevant here, i n 2009 Khan’s third wife filed a Form I

- 130 visa 4
petition which, if approved, would have allow ed Khan to apply for adjustment 5

of his immigration status. In 2013 t hat petition was denied by the United States 6
Citizenship and Immigration Services (“USCIS”) for failure to establish a bona 7

fide marriage , and Khan’s appeal of the denial was summarily dismissed. The IJ 8

then continued removal proceedings to allow Khan’s third wife to refile the 9
petition , which she did in 2015

. Khan, however, failed to appear for interviews 10

with USCIS

. In 2018 the IJ denied Khan another continuance and ordered 11

removal

. T he BIA affirmed the removal order and dismissed Khan’s appeal. 12

The standard of review is well

- established: w e review an IJ’s denial of a 13

continuance for abuse of discretion. See Sanusi v. Gonzales , 445 F.3d 193, 199 14
(2d Cir. 2006). “An IJ . . . abuse [s] his dis cretion in denying a continuance if (1) 15

[ his ] decision rests on an error of law (such as application of the wrong legal 16

1 In 2001 Khan’s first wife , who was also a United States citizen, had filed a visa petition

on Khan’s behalf, which was denied in 2003

.4 principle) or a clearly erroneous factual finding or (2) [ his ] decision

— though not 1
necessarily the product of a legal error or a clearly erroneous factual finding

— 2
cannot be located within the range of permissible decisions. ” Id. at 551

– 52 3
(quotation marks omitted). 4
Khan argues that the agency abused its discretion in declining to continue 5
his removal proceedings pending a decision on his third wife’s second Form I

6

130 visa petition. We disagree

. Khan was placed in removal proceedings in 7

2006 and , since then, has received nearly a dozen continuances for attorney 8
scheduling, venue transfers, and travel issues, as well as for the adjudication of 9
visa petitions filed by his current (third) and former (second) wives. Moreover, 10
USCIS already denied his third wife’s first Form I

- 130 visa petition in April 2013 11

for failure to establish a bona fide marriage , and his appeal of th e denial was 12
summarily dismissed

. See Pedreros v. Keisler , 503 F.3d 162, 166 (2d Cir. 2007) 13
(“ [O] nce [USCIS] denied the petition on the grounds that the marriage lacked 14

bona fides , that prima facie case [of eligibility for a visa petition] had been 15
rebutted.”)

. 16
After Khan’s third wife filed a second visa petition in 2015, Khan obtained 17

still more continuances of his removal proceedings based on the pending 185 adjudication of that petition. Khan provides no evidence that circumstances 1
have changed between his third wife’s first and second visa petition s

. In these 2
circumstances, we identify no abuse of discretion in the agency’s 2018 denial of 3
yet another continuance. “ [W] e find no basis for obligating th e agency to grant 4
continuances pending adjudication of an immigrant visa petition when there is a 5
reliable basis to conclude that the visa petition or the adjustment of status will 6
ultimately be denied.” Id. Nor do we find any error in the agency’s 7

consi deration of the history of continuances in Khan’s removal proceedings

. See 8

Sanusi , 445 F.3d at 200 (finding no abuse of discretion where noncitizen already 9
received two continuances). 10
For the foregoing reasons, the petition for review is DENIED. All 11
pending motions and applications are DENI E D and stays VACATED. 12

FOR THE COURT: 13 Catherine O’Hagan Wolfe, Clerk of Court 14