Monday, July 07, 2008

Shah Hashmi: Can't Deny Continuance Based on Case Completion Goals

Shah Hashmi v. Mukasey
531 F.3d 256
No. 06-3934
(3d Cir. July 7, 2008)

Judges Fuentes, Jordan, and District Judge Ditter (opinion by Fuentes).

The BIA and IJ Eugene Pugliese erred by refusing to grant a continuance to someone who had an immediately available application for legal permanent residence status pending. When the potential to obtain LPR status is immediate and possible, an IJ should grant a continuance. The Third Circuit distinguished the Kahn case, where it was acceptable for an IJ to deny a continuance where it appeared to require a potentially indefinite wait before the person could obtain LPR status or if the application seemed frivolous.

Where the IJ relied solely on an attempt to comply with case-completion goals from the Justice Department, that was an improper application of a one-size-fits all goal to a specific case.

Other intriguing details are the Catch-22 situation where USCIS would not rule on the I-130 until ICE counsel sent its file, but ICE counsel initially would not send its file to USCIS until USCIS ruled on the I-130.

Also, the Third Circuit criticiaed how OIL in the Justice Department improperly adopted statements as fact and during oral argument, characterized a divorce as fraudulent even though there was no evidence of that in the record beyond USCIS's intention to investigate. The attorney who handled the oral argument for OIL was Christina B. Parascandola.

The attorney for Shah Hashmi was Regis Fernandez -- congratulations!  He argued for Shah Hasmi.  For the government, Christina B. Parascandola argued the case and worked with Joan E. Smiley and Allen W. Hausman of OIL.


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