The Clerk of the Court is directed to amend the official caption in this action to… v. Holder UNITED STATES COURT OF APPEALS 1 2 FOR THE SECOND CIRCUIT 3 4 5 6 August…

* The Clerk of the Court is directed to amend the official
caption in this action to conform with that of this opinion.
09-0329-ag
Freire v. Holder
UNITED STATES COURT OF APPEALS 1
2
FOR THE SECOND CIRCUIT 3
4
5
6
August Term, 2010 7
8
(Argued: May 4, 2011 Decided: May 27, 2011) 9
10
Docket No. 09-0329-ag 11
12
13
A LTAIR C LAUDIO F REIRE , 14
15
Petitioner, 16
17
–v.– 18
19
E RIC H. H OLDER , J R ., Attorney General of the United States, 20
21
Respondent. *
22
23
24
25
Before: 26
M INER , W ALKER , and W ESLEY , Circuit Judges. 27
28
Petition for review of a Board of Immigration Appeals 29
decision, which dismissed an appeal from an immigration 30
judge’s removal order and denied Petitioner’s motion for 31
remand. 32
33
P ETITION G RANTED . 34
35
36
37
J USTIN C ONLON , Law Offices of Justin Conlon, 38
North Haven, CT, for Petitioner. 39
40

-- 1 of 12 --

2
L INDSEY C ORLISS , Attorney, Office of Immigration 1
Litigation, Civil Division, (Tony West, 2
Assistant Attorney General, Ada E. 3
Bosque, Senior Litigation Counsel, Mona 4
Maria Yousif, Trial Attorney, on the 5
brief), for Respondent Eric H. Holder, 6
Jr., United States Attorney General, 7
Washington, D.C. 8
9
10
P ER C URIAM : 11
Petitioner Altair Claudio Freire, a native and citizen 12
of Brazil, seeks review of a January 9, 2009 order of the 13
Board of Immigration Appeals (“BIA”), which (1) dismissed 14
Freire’s appeal of an April 18, 2006 decision of Immigration 15
Judge (“IJ”) Michael W. Straus ordering Freire’s removal to 16
Brazil, and (2) denied Freire’s motion for remand or 17
continuance. In re Altair Claudio Freire, No. A076 533 611 18
(B.I.A. Jan. 9, 2009), aff’g No. A076 533 611 (Immig. Ct. 19
Hartford, Conn. Apr. 18, 2006). For the following reasons, 20
we grant the petition for review. The decision of the BIA 21
is vacated, and the case is remanded to the BIA for further 22
proceedings consistent with this opinion. 23
I. BACKGROUND 24
Altair Claudio Freire, a native and citizen of Brazil, 25
was paroled into the United States in 1999 as a material 26
witness in a criminal case. In 2002, Freire’s employer 27

-- 2 of 12 --

3
petitioned the United States Citizenship and Immigration 1
Services (“USCIS”) for an employment visa on Freire’s 2
behalf. USCIS approved that petition in 2003. Freire then 3
filed, but subsequently withdrew, an application for 4
adjustment of status. 5
In 2005, after Freire’s parole status had expired, 6
Freire was served with a Notice to Appear charging him with 7
removability as an arriving alien who was not in possession 8
of a valid entry document at the time of his application for 9
admission. Freire denied his removability and asked the IJ 10
to terminate the proceedings without prejudice so that he 11
could re-file his adjustment application with USCIS. Freire 12
also asked the IJ for a continuance because, in a separate 13
case, this Court was considering the issue of whether 14
arriving aliens were permitted to adjust their status while 15
in removal proceedings. 16
In an oral decision, the IJ denied Freire a 17
continuance. The IJ found that under former 8 C.F.R. § 18
1245.1(a), Freire was not eligible to adjust his status 19
because he was an arriving alien and that “there [was] no 20
basis to continue the matter pending a possible Second 21
Circuit decision.” The IJ found Freire inadmissible and 22
ordered his removal to Brazil. 23

-- 3 of 12 --

4
Freire appealed to the BIA. He noted that in May 2006 1
the United States Attorney General had enacted new 2
regulations allowing USCIS to adjudicate the adjustment 3
applications of arriving aliens. Additionally, Freire 4
submitted evidence that he had filed an adjustment 5
application with USCIS. Thus, he asked the BIA either to 6
“administratively close or terminate his proceedings while 7
the adjustment application is pending with [USCIS]” or, 8
alternatively, “suspend making a decision in his case — or 9
remand his case to the IJ with instructions to continue his 10
case — until a decision from [USCIS] is made on the 11
adjustment application.” In 2007, the BIA dismissed the 12
appeal and denied the motion to remand, finding that 13
“[n]either the Board nor the Immigration Judge has 14
jurisdiction over whether [Freire] may adjust his status in 15
this country.” Further, the BIA determined that it could 16
not delay the removal proceedings pending USCIS’s 17
determination. 18
Freire petitioned this Court for review of the agency’s 19
denial of his request for a continuance. Freire and the 20
government entered into a Court-approved joint stipulation 21
to remand the proceedings to the agency to allow the BIA to 22
reconsider Freire’s appeal and motion in light of this 23

-- 4 of 12 --

5
Court’s decision in Ni v. BIA, 520 F.3d 125 (2d Cir. 2008). 1
In Ni, we held that an IJ’s lack of jurisdiction to 2
adjudicate an arriving alien’s adjustment application did 3
not, by itself, provide an adequate reason for the BIA to 4
deny an arriving alien’s motion to reopen while the 5
petitioner pursued adjustment of status with USCIS. Id. at 6
129–30. Additionally, we noted the BIA’s “established 7
policy of granting motions to reopen in order to permit the 8
adjudication of status-adjustment applications.” Id. at 131 9
n.4 (citing Matter of Garcia, 16 I. & N. Dec. 653, 657 10
(B.I.A. 1978)). We instructed that if the BIA decided on 11
remand to deny the motions to reopen, it “should explain how 12
doing so comports with BIA policy in this area.” Id. 13
On remand, the BIA again dismissed Freire’s appeal and 14
denied his request for a remand or continuance. The BIA 15
stated the following: 16
We acknowledge that the denial of a motion 17
to reopen or a request for a continuance to 18
await adjudication of an application before the 19
USCIS or some other agency may result in a loss 20
of relief. However, we cannot find it within 21
our authority to grant relief based on an 22
application over which we ultimately have no 23
jurisdiction. To do so would leave us open to 24
the whims and time lines of other agencies 25
which might or might not communicate the 26
outcome of a particular application to us. 27
28
29

-- 5 of 12 --

6
Further, in discussing its departure from Matter of Garcia, 1
the BIA stated that unlike in cases such as Matter of 2
Garcia, here the BIA had “neither the authority to assess 3
prima facie eligibility nor the authority to review the 4
denial [of Freire’s adjustment of status application] on 5
appeal.” Accordingly, the BIA did not “find it judicious to 6
grant a continuance or reopening to await a decision over 7
which [it has] no control.” Freire timely petitioned this 8
Court for review of the BIA’s decision. 9
II. DISCUSSION 10
We review only the decision the BIA issued following 11
remand from this Court. See Xia Fan Huang v. Holder, 591 12
F.3d 124, 127 (2d Cir. 2010) (per curiam). We review the 13
BIA’s denial of a continuance for abuse of discretion. See 14
Sanusi v. Gonzales, 445 F.3d 193, 199 (2d Cir. 2006) (per 15
curiam). The BIA abuses its discretion if its “decision 16
rests on an error of law” or a “clearly erroneous factual 17
finding” or if its decision “cannot be located within the 18
range of permissible decisions.” Rajah v. Mukasey, 544 F.3d 19
449, 453 (2d Cir. 2008). 20
Freire argues that the BIA abused its discretion in 21
denying his request for a continuance — his motion to remand 22
or temporarily terminate removal proceedings — while he 23

-- 6 of 12 --

1 We need not, and do not, address Freire’s alternative argument
that the Attorney General’s regulations preventing IJs from
adjudicating arriving aliens’ applications for adjustment of status
are invalid. See Eligibility of Arriving Aliens in Removal
Proceedings to Apply for Adjustment of Status and Jurisdiction to
Adjudicate Applications for Adjustment of Status, 71 Fed. Reg. 27,585
(May 12, 2006).
7
sought adjustment of status before the USCIS. We agree. 1
1
To the extent that the BIA denied Freire’s request for 2
a continuance on the basis that it lacked the authority to 3
grant the continuance, the denial constitutes legal error. 4
Immigration judges have broad discretionary authority to 5
“grant a motion for continuance for good cause shown.” 6
8 C.F.R. § 1003.29 (2011). The BIA correctly stated that 7
IJs and the BIA do not have jurisdiction to adjudicate most 8
arriving aliens’ applications for adjustment of status. See 9
id. § 1245.2(a)(1)(ii). However, that does not prevent IJs 10
or the BIA from adjudicating motions for continuance in 11
removal proceedings over which they already have 12
jurisdiction. Cf. Matter of Hashmi, 24 I. & N. Dec. 785, 13
790–91 (B.I.A. 2009) (setting forth standards for 14
determining a motion for continuance where a visa petition 15
is pending before USCIS, while recognizing that “Immigration 16
Judges do not have jurisdiction to decide visa petitions”). 17
Contrary to the government’s argument, the BIA’s 18
conclusion in Matter of Yauri, 25 I. & N. Dec. 103, 108-10 19

-- 7 of 12 --

8
(B.I.A. 2009), that it did not have jurisdiction to grant a 1
motion to reopen based on an arriving alien’s application 2
for adjustment of status pending with USCIS is inapposite to 3
this case. There, the BIA concluded that it lacked the 4
authority “to reopen proceedings to effectively grant . . . 5
a ‘stay’ of a final order while the alien pursues an 6
independent adjustment of status application with the 7
USCIS.” Id. at 109. The same reasoning does not apply 8
here, however, where Freire sought a continuance of his 9
ongoing removal proceedings rather than a reopening of an 10
administratively final order of removal. Indeed, the BIA 11
stated in Yauri that “[t]here can be sound reasons to 12
continue or administratively close proceedings while matters 13
outside the Immigration Judge’s jurisdiction are resolved.” 14
Id. at 111 n.8. 15
Additionally, to the extent that the BIA relied on its 16
lack of jurisdiction to adjudicate the underlying adjustment 17
of status application as its sole ground for denying Freire 18
a continuance, the BIA repeated the error identified in Ni. 19
In Ni, the BIA denied several motions to reopen removal 20
proceedings on the sole basis that it lacked jurisdiction 21
over the underlying applications for adjustment of status. 22
520 F.3d at 129. In finding that these decisions 23

-- 8 of 12 --

9
constituted an abuse of the BIA’s discretion, we held that 1
“rote recital of a jurisdictional statement — even if 2
technically accurate — does not adequately discharge the 3
BIA’s duty to consider the facts of record relevant to the 4
motion and provide a rational explanation for its ruling.” 5
Id. at 129–130 (internal quotation marks omitted). 6
Here, the BIA stated that to grant a continuance of 7
removal proceedings based upon an adjustment of status 8
petition pending before another agency would subject the BIA 9
to “the whims and time lines of other agencies which might 10
or might not communicate the outcome of a particular 11
application” to the BIA. Furthermore, the BIA stated that 12
it did not find it “judicious to grant a continuance or 13
reopening to await a decision over which [it has] no 14
control.” Though they contain some elaboration, the BIA’s 15
statements still fail to satisfy Ni. The BIA simply 16
explained why it found the grant of a continuance in these 17
types of situations imprudent as a general practice. It did 18
not evaluate the merits of granting or denying Freire a 19
continuance of his removal proceedings based on the specific 20
facts of this record. Cf. Clifton v. Holder, 598 F.3d 486, 21
494 (8th Cir. 2010) (explaining that in addressing a 22
continuance motion, the BIA was required to consider “how 23

-- 9 of 12 --

10
the [] evidence [that the petitioner submitted, showing her 1
application for adjustment of status pending before USCIS] 2
might affect the IJ’s decision to continue the case”). 3
Several months after it dismissed Freire’s appeal, the 4
BIA in a separate matter enunciated a clear standard to 5
guide its exercise of discretion when aliens in removal 6
proceedings request a continuance to apply for adjustment of 7
status. See Hashmi, 24 I. & N. Dec. at 790–91; see also 8
Matter of Rajah, 25 I. & N. Dec. 127, 130 (B.I.A. 2009) 9
(applying Hashmi factors to alien seeking employment-based 10
adjustment of status). Although, unlike in Hashmi, Freire’s 11
adjustment of status application is to be decided by another 12
agency, we see no reason why the BIA should not consider the 13
Hashmi factors in deciding Freire’s motion for continuance. 14
Indeed, the very purpose for the continuance requested in 15
Hashmi was to allow USCIS to adjudicate a visa petition that 16
the “Immigration Judge[ did] not have jurisdiction to 17
decide.” Hashmi, 24 I. & N. Dec. at 791. Thus, on remand, 18
the BIA should either follow the Hashmi factors in 19
determining whether to grant Freire’s motion for continuance 20
or explain why application of those factors is inappropriate 21

-- 10 of 12 --

2 Moreover, the decision to deny Freire a continuance did not
satisfactorily explain its deviation from the BIA’s decision in Matter
of Garcia, 16 I. & N. Dec. 653, 657 (B.I.A. 1978), modified on other
grounds by Matter of Arthur, 20 I. & N. Dec. 475 (B.I.A. 1992),
announcing the general rule that a continuance should be granted where
an alien establishes his prima facie eligibility for adjustment of
status. See Ni, 520 F.3d at 131 n.4 (noting that the BIA needs to
explain any departure from Matter of Garcia). The BIA explained that
Matter of Garcia did not apply to aliens with applications for
adjustment of status pending before other agencies because IJs and the
BIA do not have the authority to assess such aliens’ prima facie
eligibility for adjustment. But the BIA gave no explanation as to why
it was without authority to consider Freire’s prima facie eligibility
to adjust status for the purpose of determining whether to grant a
continuance.
3 The government cites Scheerer v. U.S. Attorney General, in
which the Eleventh Circuit found no abuse of discretion where the BIA
denied a request for a continuance based only on the fact that it did
not have jurisdiction to adjudicate the alien’s adjustment application
pending with USCIS. 513 F.3d 1244, 1254–55 (11th Cir. 2008). We do
not follow Scheerer to the extent that it is contrary to Ni’s holding
that recitation of the BIA’s lack of jurisdiction to adjudicate the
underlying application, without more, constitutes an abuse of
discretion.
11
in the present case. 2
1
Because the BIA failed to “provide a rational 2
explanation for its ruling” that is tied to the record, the 3
BIA abused its discretion in denying Freire’s motion for 4
remand or continuance. Ni, 520 F.3d at 129-30 (internal 5
quotation marks omitted). To be clear, as in Ni, we do not 6
address whether Freire’s motion for continuance should be 7
granted; we leave that decision for the BIA to address in 8
the first instance. Id. at 131. 3 If the BIA decides on 9
remand to deny Freire’s motion, “it must provide adequate 10
reasons for doing so, thereby furnishing this Court with a 11
meaningful opportunity to review any such denial.” Id. 12

-- 11 of 12 --

12
III. CONCLUSION 1
For the foregoing reasons, the petition for review is 2
GRANTED. The January 9, 2009 decision of the BIA is 3
VACATED, and the case is REMANDED to the BIA for proceedings 4
consistent with this opinion. 5

-- 12 of 12 --