Tuesday, August 25, 2009

Mino-Saldana (not precedential): IJ Must Grant A Short Continuance To Resolve Substantial Issues About Adjustment of Status

Mino-Saldana v. Holder
Not Precedential
July 31, 2009

Judges Fuentes, Weis, and Garth. Per Curiam. The attorneys for Ms. Mino-Saldana before IJ Garcy were Marcia S. Kasdan and Renta A. Pilny (who are from the same office).

The Third Circuit overturned the BIA and IJ Annie S. Garcy for not granting a short continuance to resolve whether the immigrant could avoid deportation by obtaining legal permanent residence status through the adjustment of status process.

IJ Garcy refused to grant a short continuance to resolve the issue of completing all the paperwork to show that Ms. Mino-Saldana was section 245(i) eligible and could obtain LPR status through an I-140 petition her husband's employer supported for her husband and herself. The case could have been resolved on the merits within a matter of days with no detriment to the government. IJ Garcy's refusal to grant a short continuance was a misuse of discretion.

The Third Circuit also agreed to accept new evidence into the record on appeal -- Ms. Mino-Saldana's husband had an I-140 filed, it was approved, and he is in line to obtain LPR status. Rather than exclude the new evidence, deny the appeal, and have Ms. Mino-Saldana try to reopen the case by filing a motion to reopen with the BIA due to newly available evidence, the Third Circuit used its power to accept new evidence into the record and cite that in overturning the BIA and IJ Garcy.


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