Fry (not precedential): BIA May Not Deny Continuance For Untrue Reasons

Fry v. Mukasey, No. 05-3547 (3d Cir. Mar. 24, 2008) (not precedential).
http://www.ca3.uscourts.gov/opinarch/053547np.pdf

If you are filing an appeal, you might ask the BIA to wait and grant a continuance so that other things in progress can be decided first. In this case, Mr. Fry wanted the BIA to wait on ruling whether he should be deported for overstaying his visa until USCIS could perhaps pave the way for him to get a green card through his US citizen wife. The BIA refused to delay its ruling, but the Third Circuit criticized the BIA for relying on untrue reasons. It seems like a comedy of errors:

• The BIA said it never got any proof that Mr. Fry appealed the initial denial of his I-130 application that starts the green card process. The Third Circuit, though, pointed out that the BIA did get proof of that.
• The BIA said the I-130 appeal should not have been sent to USCIS but instead to the BIA directly. The Third Circuit, though, pointed out that the rules require submitting I-130 appeals to USCIS, not the BIA. (Does the BIA not know its own rules?)
• The BIA said it never got a copy of the evidence of a real marriage that Mr. Fry used in his I-130 appeal. The Third Circuit, though, pointed out that the BIA did get a copy of a letter and brief about the I-130 appeal that included an explanation of all the evidence of a real marriage.

So it seems as if the BIA just plain got it wrong. The Third Circuit remanded the case to require them to redo their analysis of whether to grant a continuance. By now, the I-130 has been approved so it might be easy for Mr. Fry to avoid deportation by pursuing the green card application.

On another point, Mr. Fry could not invoke claim preclusion (or res judicata) to argue that INS's failed attempt to deport him in an expedited removal proceeding in April 2002 for supposedly committing an aggravated felony would prevent DHS from starting a removal proceeding in August 2002 for being removable as committing a crime involving moral turpitude. Expedited removal proceedings cannot be brought for crimes involving moral turpitude, so INS did not fully litigate that issue in April 2002. So it can't be stopped from raising it in August 2002.

Roger F. Cox of Blank Rome LLP in Philadelphia represented Mr. Fry in the appeal. The attorney who unsuccessfully argued the case for the government was Aliza B. Alyeshmerni.