Trevaun Mowatt v. U.S. Attorney General

Filing

Opinion issued by court as to Petitioner Trevaun Lloyd Mowatt. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. Petition DENIED. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 14-14817

Date Filed: 09/08/2015

Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-14817
Non-Argument Calendar
________________________
Agency No. A055-569-825

TREVAUN LLOYD MOWATT,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(September 8, 2015)

Before HULL, ROSENBAUM and BLACK, Circuit Judges.
PER CURIAM:

Case: 14-14817

Date Filed: 09/08/2015

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Trevaun Lloyd Mowatt, a native and citizen of Jamaica, seeks review of the
Board of Immigration Appeals’ (BIA’s) affirmance of the Immigration Judge’s
(IJ’s) denial of a motion for a continuance. At his removal hearing, Mowatt
explained he was planning to marry his girlfriend and would file an I-130
application for adjustment of status, but the IJ found his adjustment of status
speculative. Mowatt also appeals the BIA’s denial of his motion to remand to the
IJ in order to reopen proceedings to obtain adjustment of status. After review,1 we
deny the petition.
The BIA did not abuse its discretion in affirming the IJ’s denial of the
motion for a continuance. See 8 C.F.R. § 1003.29 (providing an IJ “may”
continue removal proceedings “for good cause shown”). The DHS opposed
the motion and at the time of the hearing, Mowatt was not married, had no
specific plan to marry, and had not applied for a marriage license or put
down a deposit for a location. Matter of Hashmi, 24 I. & N. Dec. 785, 790

1

When the BIA issues a decision, we review only that decision, except to the extent the
BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.
2001). We review both the denial of a motion for continuance and the denial of a motion to
reopen for abuse of discretion. Chacku v. U.S. Att’y Gen., 555 F.3d 1281, 1285 (11th Cir. 2008);
Montano Cisneros v. U.S. Att’y Gen., 514 F.3d 1224, 1226 (11th Cir. 2008). Review “is limited
to determining whether there has been an exercise of administrative discretion and whether the
matter of exercise has been arbitrary or capricious.” Montano Cisneros, 514 F.3d at 1226.
(quotations omitted).
2

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(BIA 2009)2 (providing an IJ may consider a variety of factors in granting or
denying a motion for continuance, including, inter alia, the DHS’s response
to the motion, the respondent’s statutory eligibility for adjustment of status,
and whether the respondent’s application for adjustment merits a favorable
exercise of discretion). No I-130 petition had been filed on Mowatt’s behalf,
and any consideration of whether he would be entitled to relief was purely
speculative. See Chacku v. U.S. Att’y Gen., 555 F.3d 1281, 1286 (11th Cir.
2008) (noting an IJ may deny a continuance where an alien’s eligibility to
adjust status was speculative). Moreover, Mowatt’s prior conviction for
child abuse was a negative factor that could impact the decision to grant him
discretionary relief. Accordingly, Mowatt had not shown good cause for a
continuance.
The BIA also did not abuse its discretion in denying Mowatt’s motion to
remand 3 as Mowatt failed to provide clear and convincing evidence that his
marriage was bona fide. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1302 (11th Cir.
2001) (explaining the BIA has broad discretion to grant or deny a motion to reopen
and the BIA can deny a motion to reopen for a petitioner’s failure to establish a
2

While Mowatt argues the standards of Matter of Hashmi should not apply, there is no
merit to his argument. See Ferreira v. U.S. Att’y Gen., 714 F.3d 1240, 1243 (11th Cir. 2013)
(applying the factors from Matter of Hashmi).
3

Courts generally look at the substance of a motion to remand to determine how it
should be treated on appeal. See Al Najjar, 257 F.3d at 1301. If, as here, the alien seeks to
introduce new evidence, it is generally treated as a motion to reopen. Id.
3

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prima facie case of eligibility for adjustment of status). While, Mowatt submitted
his pending I-130 petition, birth certificates for himself and his wife, and pictures
of the two of them, he did not submit any of the documents described in 8 C.F.R.
§ 1245.1(c)(8)(v) used to show that a marriage is bona fide and not entered into
solely “for the purpose of procuring the alien’s admission as an immigrant.” 8
U.S.C. § 1255(e)(1)-(3); 8 C.F.R. § 1245.1(c)(8)(iii)(F). Such documentation
included joint ownership of property, lease showing a common residence, evidence
of commingling of financial resources, birth certificates of their children, affidavits
from others who could attest to the bona fides of the marriage, or any other
evidence to show that the marriage was not entered into in order to evade removal.
See 8 C.F.R. §§ 1245.1(c)(8)(v), 204.2(a)(1)(iii)(B). In the absence of such clear
and convincing evidence, Mowatt has not shown that he was prima facie eligible
for adjustment of status, and the BIA did not abuse its discretion by denying the
motion to remand to the IJ in order to reopen proceedings to obtain adjustment of
status.
PETITION DENIED.

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