Tarun Patel v. Attorney General United State

Filing

NOT PRECEDENTIAL OPINION Coram: MCKEE*, Chief Judge, HARDIMAN and RENDELL, Circuit Judges. Total Pages: 5. Judge: MCKEE Authoring. (*Judge McKee concluded his term as Chief Judge of the U.S. Court of Appeals on September 30, 2016.)

Case: 16-1041

Document: 003112506002

Page: 1

Date Filed: 01/09/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-1041
_____________
TARUN PATEL,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
______________
On Petition for Review of a Final Order
Of the Board of Immigration Appeals,
(Agency No. A205-256-758)
Immigration Judge: Honorable Miriam K. Mills
______________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
September 19, 2016
______________
Before: McKEE, Chief Judge,* HARDIMAN and RENDELL, Circuit Judges.
(Filed: January 9, 2017)
_______________________
OPINION
______________________

*

Judge McKee concluded his term as Chief of the U.S. Court of Appeals for the Third
Circuit on September 30, 2016.

This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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Document: 003112506002

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Date Filed: 01/09/2017

McKEE, Chief Judge.
Tarun Patel seeks review of the Board of Immigration Appeals’ ruling to accept
the Immigration Judge’s ruling ordering his deportation. Patel argues that the
Immigration Judge abused her discretion when she denied his motion for continuance and
deemed his asylum application waived.
For the reasons that follow, we will deny the petition for review.
I.
Because we write for the parties who are familiar with the factual and procedural
history of this case, we provide only the background necessary to our conclusions.
On May 20, 2013 and April 7, 2014, the Immigration Judge granted Patel
continuances in order for his counsel to have additional time to prepare applications for
relief. On the latter date, Patel appeared before the Immigration Judge and indicated that
he was still in the process of filing an asylum petition. Although the Immigration Judge
noted that the asylum application would be untimely, the Judge granted the continuance
but stated that Patel would be expected to file the asylum application at the next hearing
on August 18, 2014.1
At the August 18, 2014 hearing, Patel did not submit an asylum application but
stated, rather, that he was contemplating voluntary departure. However, Patel requested
another continuance to again investigate the possibility of filing for asylum because Patel

1

The record indicates that the Immigration Judge clearly stated that Patel must file his
asylum application at the August 18, 2014 hearing. Patel nonetheless argues that he was
not made aware of the absolute nature of the deadline to file for asylum.
2

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had heard that his brother in India had been kidnapped the week before. The Immigration
Judge denied the continuance, deemed Patel’s opportunity to file an asylum application
waived, and entered an Order of Removal because Patel failed to demonstrate good cause
for a continuance and because his removal proceedings had been pending for over two
years.
Patel appealed to the Board of Immigration Appeals, arguing that the Immigration
Judge abused her discretion in denying the motion for continuance. The Board disagreed
and dismissed the appeal. This petition for review followed.
II.
We review both the Board’s and Immigration Judge’s decisions.2 The Immigration
Judge’s denial of a continuance request in removal proceedings is reviewed for abuse of
discretion.3 We also review the Immigration Judge’s determination that the right to file
an application or document was waived for abuse of discretion.4 Accordingly, we will
not reverse the Immigration Judge’s ruling unless the decision was “arbitrary, irrational,
or contrary to law.”5
An immigration judge may “grant a motion for continuance for good cause

This Court may review both the Board’s and Immigration Judge’s decisions when the
Board’s decision “substantially relies upon” the Immigration Judge’s decision. Kaita v.
Atty. Gen. of U.S., 522 F.3d 288, 295 (3d Cir. 2008).
3
Khan v. Atty. Gen. of U.S., 448 F.3d 226, 233 (3d Cir. 2006).
4
See Dediji v. Mukasey, 525 F.3d 187, 191 (2d Cir. 2008) (reviewing application of 8
C.F.R. § 1003.31(c) for abuse of discretion).
5
Contreras v. Atty. Gen. of U.S., 665 F.3d 578, 583 (3d Cir. 2012).
2

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shown.”6 “The question 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.”7
Patel argues that the denial of his continuance request amounted to an abuse of
discretion because he should have been granted additional time to gather evidence
regarding his brother’s recent kidnapping. Patel’s counsel urged that the kidnapping may
provide a basis for an asylum claim.
The Immigration Judge held that Patel’s motion for continuance was not supported
by good cause because Patel presented no evidence that his brother had actually been
kidnapped.8 We conclude that there was no abuse of discretion here because the facts
regarding the kidnapping were merely speculative and no evidence was presented to
support that claim.9 Not surprisingly, Patel cites to no persuasive authority to support his
argument that the Immigration Judge abused her discretion in denying his continuance
request.
For the same reason, the Immigration Judge did not abuse her discretion in ruling
that Patel’s asylum application was waived. An immigration judge “may set and extend
6

Hashmi v. Atty. Gen. of U.S., 531 F.3d 256, 259 (3d Cir. 2008) (quoting 8 C.F.R. §
1003.29) (internal quotation marks omitted).
7
Ponce-Leiva v. Ashcroft, 331 F.3d 369, 377 (3d Cir. 2003) (quoting Baires v. INS, 856
F.2d 89, 91 (9th Cir. 1988) (internal quotation marks omitted)).
8
Without referring this Court to any portion of the record, Patel claims that he offered to
testify about his brother’s kidnapping on August 18, 2014. This Court could not uncover
anywhere in the record where Patel offered to testify.
9
Khan, 448 F.3d at 235.
4

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time limits for the filing of applications and related documents.”10 If the application is not
filed within the time set by the immigration judge, “the opportunity to file that
application or document shall be deemed waived.”11
Here, the Immigration Judge granted Patel’s request for a continuance at the April
7, 2014 hearing for the purpose of allowing Patel time to complete and file his asylum
application at the next hearing date, even though an asylum application would then have
been untimely. At the next hearing date, however, Patel did not file an asylum application
but rather indicated that he was contemplating voluntary departure. Because Patel failed
to file his asylum application within the time set by the Immigration Judge, the Judge
properly exercised her discretion in concluding that Patel had waived his opportunity to
file for asylum.12
III.
For the reasons set forth above, we will deny the petition for review.
10

8 C.F.R. § 1003.31(c).
Id.
12
Patel states in his brief that the waiver of his asylum application violated his “due
process procedural rights.” To the extent that Patel raises a due process claim, that
argument also fails. To establish this claim, Patel “must show that he was prevented from
reasonably presenting his case.” Uspango v. Ashcroft, 289 F.3d 226, 231 (3d Cir. 2002)
(internal quotation marks and citation omitted). Patel has failed to make any such
showing. He alleges only that his due process rights were violated because he and his
counsel were not made aware of the Immigration Judge’s “absolute deadline” for filing
the asylum application and the consequences of not meeting that deadline. However,
Patel was granted a requested continuance to allow time to file an asylum application,
even though such application would have been untimely. Therefore, there is no due
process violation. See Khan, 448 F.3d at 236 (rejecting petitioner’s claim that denial of a
continuance request violated his due process rights because he could not show that he
was prevented from reasonably presenting his case and that his argument “merely recasts
his abuse-of-discretion argument in constitutional terms”).
11

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