Ajmal Hussain Shah Hashmi v. Attorney General of the United States

The Honorable J. William Ditter, Jr., United States District*
Judge, United States District Court for the Eastern District of
Pennsylvania, sitting by designation.
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-3934
AJMAL HUSSAIN SHAH HASHMI,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order
of the Board of Immigration Appeals
(No. A95 827 197)
Immigration Judge: Eugene Pugliese
___________
Argued January 8, 2008
Before: FUENTES, JORDAN, Circuit Judges, and DITTER,*
District Judge
(Opinion Filed: July 7, 2008)

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2
Regis Fernandez [ARGUED]
3rd Floor
18 Green Street
Newark, NJ 07102
Counsel for Petitioner
Ajmal Hussain Shah Hashmi
Christina B. Parascandola [ARGUED]
Richard M. Evans
Joan E. Smiley
Allen W. Hausman
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
Michael B. Mukasey, United States Attorney General
OPINION
FUENTES, Circuit Judge
Petitioner Ajmal Hussain Shah Hashmi’s removal
proceedings were adjourned on multiple occasions while he
awaited adjudication of his pending I-130 application (a claim for
residency based on his marriage to a United States citizen). After
eighteen months had elapsed, the Immigration Judge (“IJ”) denied
a further continuance – despite the government’s consent – because
the case had been pending far longer than the eight-month period
suggested by the “case-completion goals” set by the Department of
Justice (“DOJ”) for this type of case. In our view, the IJ’s denial
of a motion for a continuance based on case-completion goals
rather than on the facts and circumstances of Hashmi’s case was
arbitrary and an abuse of discretion. Accordingly, we grant
Hashmi’s petition for review.

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The Notice to Appear also charged Hashmi with failing to1
appear for special registration on or before March 21, 2003, as
mandated by order of the Attorney General.
3
I.
Hashmi is a native and citizen of Pakistan. He has testified
that he was previously married in his home country and that the
marriage ended in divorce. He entered the United States on
October 22, 2000, on a six-month tourist visa, which he overstayed.
The following year, Hashmi married a United States citizen, who
filed an I-130 petition on his behalf. The government contends that
the petition “shows no prior husband or wife”; however, Hashmi
submitted the divorce decree for his prior marriage during the I-130
application process and insists that he never intended to conceal the
prior marriage. (App. 70.)
Hashmi was served on July 30, 2003 with a Notice to
Appear for overstaying his visa. On September 25, 2003, at his
first court hearing on the removal charges, Hashmi admitted the
allegations and conceded both charges; he also notified the court1
of the pending I-130 petition and his intention to seek adjustment
of status. Since that initial hearing, Hashmi has been mired in a
bureaucratic morass caused by the government’s failure to ensure
that necessary information about his case has been available to both
those adjudicating his removal proceedings and those adjudicating
his I-130 petition, which are taking place on parallel tracks within
the Department of Homeland Security (“DHS”).
On November 25, 2003, Hashmi and his wife appeared for
a hearing before Citizen and Immigration Services (“CIS”) in
Cherry Hill, New Jersey, regarding the I-130 petition. In light of
the CIS hearing and the pending I-130 petition, the IJ granted
Hashmi three additional adjournments of his removal proceedings
over a period of approximately 18 months. At a May 24, 2004
hearing, the government represented that CIS believed that one of
the documents provided by Hashmi in connection with the I-130
petition had been “altered,” and that the document had been “sent

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The record does not make clear exactly what information is2
contained within the “A” file, but CIS represented that Hashmi’s
I-130 petition could not be adjudicated without it.
4
out for authentication.” (App. 65-66.) At an August 26, 2004
hearing, the government clarified that a “questionable document
was sent overseas” for investigation, and that CIS had not made a
final ruling as to its authenticity. (App. 75.) It has since become
apparent that the document at issue is the decree that allegedly
demonstrates that Hashmi’s prior marriage in Pakistan ended in
divorce.
In a letter sent to the IJ a few days prior to a March 29, 2005
hearing, Hashmi’s attorney explained that Hashmi was stuck in a
“‘[C]atch[-]22.’” (App. 85.) Not only had the divorce decree not
yet been authenticated, but a portion of Hashmi’s file – the “A”
file – had been sent by the CIS office in Cherry Hill, New Jersey,2
to the government attorney who was handling Hashmi’s removal
proceedings in Newark, New Jersey. The CIS office informed
Hashmi’s attorney that it could not proceed without the “A” file,
but that the government attorney who had the file in his possession
did not want to return it until removal proceedings were complete.
Hashmi’s counsel thus requested an adjournment so that the “A”
file could be returned to Cherry Hill.
At the hearing before the IJ on March 29, 2005, Hashmi’s
attorney reiterated to the IJ that the divorce decree had not been
authenticated and that CIS did not have the “A” file; as a result,
Hashmi’s I-130 petition had still not been adjudicated. Hashmi’s
attorney then requested a six-month adjournment, which the
government did not oppose. The IJ, however, chose to deny the
continuance, and delivered an oral decision finding Hashmi
removable to Pakistan because, as Hashmi admitted during his
initial plea, he had overstayed his visa and failed to appear for
special registration. The IJ stated that it was his obligation to
complete cases “within a reasonable period of time.” (App. 46.)
Referencing the DOJ’s case-completion goals, which are not
mandatory but serve as a guideline to assist IJs in managing their
calendars, the IJ noted that the case-completion goal for this case

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The government represented that CIS had indicated via letter,3
received December 7, 2007, that it would conduct a “final
interview” about the petition “within 60 to 90 days,” and that a
decision would “follow after.” See Letter from Allen Hausman,
senior Litigation Counsel, Office of Immigration Litigation, to the
Court (December 13, 2007). Furthermore, when this Court asked
about the status of Hashmi’s I-130 petition at oral argument, the
government confirmed that CIS had not yet ruled on the petition.
To our knowledge, CIS has still not ruled on the petition.
5
type was about 8 months, and that – due to the multiple
adjournments – the case had already been pending for a year and a
half. The IJ further observed that Hashmi could cite to no law
stating that an immigration judge must indefinitely postpone
removal proceedings for a pending I-130 petition.
The Board of Immigration Appeals (“BIA”) adopted and
affirmed the IJ’s decision. It stated that an IJ’s discretionary denial
of a continuance would not be overturned absent a showing of
actual prejudice or a showing that the outcome of the proceedings
would be “materially affected.” (App. 2.) It also asserted that
although [Hashmi] faults the Department of
Homeland Security (DHS) for the delay in
adjudicating the I-130 petition, the transcript reflects
that adjudication was delayed because there were
issues raised regarding an undisclosed prior marriage
and the authenticity of respondent’s divorce decree,
which document the DHS has sent overseas, and has
been awaiting, for verification.
(App. 2.)
Hashmi filed a timely petition for review. We have3
jurisdiction pursuant to 8 U.S.C. § 1252.
II.
Where, as here, the BIA adopts and affirms the decision of

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Hashmi further argues that the IJ abused his discretion by4
violating the BIA’s holding in Matter of Velarde-Pacheco, 23 I &
N Dec. 253 (BIA 2002). We agree with the government that
Hashmi’s reliance on Velarde-Pacheco is misplaced, as that case
involved a motion to reopen rather than a motion for a continuance,
and held only that an alien’s motion to reopen based on an I-130
petition filed after the original removal order was issued should be
granted if an alien can demonstrate, inter alia, a bona fide marriage.
6
the IJ, as well as provides its own reasoning for its decision, the
Court reviews both the decisions of the IJ and the BIA. See He
Chun Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). An IJ
may “grant a motion for continuance for good cause shown.” 8
C.F.R. § 1003.29. This Court has jurisdiction to review an IJ’s
decision to deny a continuance, and does so for abuse of discretion.
See Kahn v. Att’y Gen., 448 F.3d 226, 233 (3d Cir. 2006); Ponce-
Leiva v. Ashcroft, 331 F.3d 369, 377 (3d Cir. 2003). An IJ’s
decision should be reversed as an abuse of discretion only if it is
arbitrary, irrational or contrary to law. See Tipu v. INS, 20 F.3d
580, 582 (3d Cir. 1994). In Ponce-Leiva, this Court further
explained that “‘[t]he 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.’” 331 F.3d at 377 (quoting Baires v.
INS, 856 F.2d 89, 91 (9th Cir. 1988)).
III.
We turn first to the decision rendered by the IJ, and we
conclude that the IJ abused his discretion when he denied Hashmi’s
motion for a continuance based solely on concerns about the
amount of time required to resolve Hashmi’s case.
Hashmi’s principal argument is that this case is
distinguishable from Kahn, a recent case addressing a similar set
of circumstances. In Kahn, petitioner’s wife had applied for a4
Labor Certification (“Certification”) pursuant to 8 U.S.C. §
1255(i). 448 F.3d at 229. If the application were granted,

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7
petitioner’s wife would be designated a legal permanent resident
alien, and petitioner (as her spouse) would be eligible to apply for
adjustment of status. See id. At petitioner’s removal hearing,
petitioner conceded removability and requested a continuance
pending the outcome of the Certification application; petitioner’s
counsel advised the IJ that it usually took about 45 days to get a
ruling on a Certification. See id. The IJ observed that because the
Certification was merely pending, and petitioner was not yet
eligible to file a visa petition, petitioner was not prima facie
eligible to adjust his status. See id. As a result, the IJ denied the
continuance, ruling that it would be inappropriate to grant an
adjournment of these proceedings given the lack of prima facie
eligibility. See id.
We denied the petition, ruling that the IJ’s decision to deny
the continuance was not an abuse of discretion. We noted that “any
continuance would be indefinite” and that the petitioner offered
“only the speculative possibility that at some point in the future”
his wife could receive a Certification. Id. at 235 (citation and
internal quotation marks omitted). We also approved of the IJ’s
observation that, because the Certification was pending, the
petitioner had not yet submitted the visa petition, which was
ultimately the document that would allow petitioner to adjust his
status. See id.
We agree with Hashmi’s contention that this case is
distinguishable from Kahn. Hashmi is not potentially eligible to
apply for a status adjustment. It appears that he is eligible. He has
already filed his I-130 petition, and is in the process of having the
petition adjudicated. In addition, our concern in Kahn that any
grant of a continuance would be “indefinite” is not implicated here.
Id. at 235. It is evident from the record that CIS had not proceeded
with the adjudication of Hashmi’s I-130 petition because it was
missing Hashmi’s “A” file, which was being held by a different
branch of DHS responsible for overseeing Hashmi’s removal
proceeding. Hashmi’s attorney had communicated with both CIS
and the government attorney responsible for the removal
proceedings, and had convinced the latter to return the “A” file to
CIS so that the adjudication process could continue. Presumably,
if the IJ had granted the continuance agreed to by the parties,

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8
consistent with his representation to Hashmi’s counsel, the
government attorney would have sent the “A” file back to CIS, and
the adjudication of the petition would have resumed.
Moreover, as this Court noted in Kahn, the BIA has
determined that it “clearly would not be an abuse of discretion for
the immigration judge to summarily deny a request for a
continuance . . . upon his determination that the visa petition is
frivolous or that the Adjustment Application would be denied on
statutory grounds or in the exercise of discretion notwithstanding
the approval of the petition.” 448 F.3d at 234 n.7 (quoting Matter
of Garcia, 16 I & N Dec. 653, 656-57 (BIA 1978), modified on
other grounds by In re Arthur, 20 I & N Dec. 475 (BIA 1992)).
Neither of those circumstances applies here: the IJ did not make a
determination that the I-130 petition was frivolous, nor did he
determine that it was likely to be denied. Instead, the sole basis for
the IJ’s exercise of discretion was the IJ’s perceived “obligation[]”
to “manage [his] calendar[]” and “complete cases within a
reasonable period of time.” (App. 46.) The IJ determined what
constituted a “reasonable period” by looking to the “case-
completion goals” set forth by the Department of Justice. Id.
Consequently, although the IJ noted it was “regrettabl[e]” that the
I-130 petition had not been adjudicated, he concluded that
Hashmi’s case should be closed because it fell into a category of
cases with a case-completion goal of eight months, and had been
pending for a much longer period of time. Id. at 45.
This one-size-fits-all approach runs contrary to our
statement in Ponce-Leiva that what “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.” 331 F.3d at 377 (citation
omitted) (emphasis added). Case-completion goals are ordinarily
implemented as guidelines to promote reasonable uniformity and
to help judges schedule and effectively manage their caseloads. As
guidelines, they should not be read as an end in themselves but as
a means to prompt and fair dispositions, giving due regard to the
unique facts and circumstances of the case.
Here, the IJ clearly failed to take into account the specific

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We disagree with the position taken by the government at oral5
argument that it was Hashmi’s responsibility to compel CIS to
adjudicate his I-130 petition, and that he should have taken
additional steps to ensure that the petition was adjudicated prior to
the March 29, 2005 removal hearing. The record clearly indicates
that Hashmi filed his I-130 petition in a timely fashion; appeared
as scheduled at the CIS hearing regarding the petition; pursued
with CIS the issue of the missing “A” file; and communicated to
the IJ that an adjournment would permit the “A” file to be returned
to CIS so that the adjudication could proceed. We do not believe
that Hashmi could have pursued the matter in a more diligent
fashion.
9
facts and circumstances of Hashmi’s case. Instead, the IJ treated
Hashmi’s case as if it were interchangeable with any other case
within the same case-completion goal category. To reach a
decision about whether to grant or deny a motion for a continuance
based solely on case-completion goals, with no regard for the
circumstances of the case itself, is impermissibly arbitrary. See,
e.g., Tipu, 20 F.3d at 583-4. For this reason, we conclude that the
IJ’s decision to deny the continuance was an abuse of discretion.
We further note that Hashmi’s counsel aptly characterized
Hashmi’s situation as a “Catch-22.” It is absurd indeed that
Hashmi should be ordered removed because the file needed for one
DHS office to adjudicate his I-130 petition was being held by a
different DHS office, which succeeded in removing Hashmi
because the first DHS office had failed to adjudicate the petition.5
A ruling in favor of the government here would leave DHS with no
incentive to fix its procedures to avoid such a situation in the future
and would allow the deportation of similarly-situated individuals,
who may well be entitled to an adjustment of status, simply
because the period mandated by the case-completion goals has
expired. And the consequences of removal are not small. If
Hashmi is removed, it will be on an involuntary basis, and he will
have to wait ten years to return to the United States, even if his I-
130 petition is granted in the interim. See INA §
212(a)(9)(B)(i)(II).

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We note that counsel for the government not only improperly6
adopted the BIA’s statement that there were questions as to “the
authenticity of the respondent’s divorce decree” as a legitimate
factual finding, see Appellee’s Br. at 18, but strayed even further
from the record at oral argument, characterizing the divorce decree
10
IV.
We also review the BIA’s decision, as it appears to provide
an additional basis for Hashmi’s removal. The BIA’s decision
contains language which suggests that the denial of the continuance
was not an abuse of discretion because some fault for the delay in
adjudicating the I-130 petition lay with Hashmi:
Moreover, although the respondent faults the
Department of Homeland Security (DHS) for the
delay in adjudicating the I-130 petition, the transcript
reflects that adjudication was delayed because there
were issues raised regarding an undisclosed prior
marriage and the authenticity of the respondent’s
divorce decree, which document the DHS has sent
overseas, and has been awaiting, for verification.
(App. 2.) However, the IJ made no finding that the I-130 petition
was delayed due to Hashmi’s actions, nor did the IJ base his
decision to deport Hashmi on such a finding. In fact, the IJ’s
decision never addressed the reason why CIS had failed to
adjudicate Hashmi’s I-130 petition.
The BIA is prohibited from making findings of fact. See 8
C.F.R. § 1003.1(d)(3)(iv) (“the Board will not engage in
factfinding in the course of deciding appeals”); see also Nabulwala
v. Gonzales, 481 F.3d 1115, 1118 (8th Cir. 2007); Chen v. Bureau
of Citizenship and Immigration Servs., 470 F.3d 509, 513-14 (2d
Cir. 2006). Therefore, to the extent that the BIA’s decision rests in
the alternative on its own finding of fact that the IJ did not abuse
his discretion by denying the continuance because Hashmi’s own
actions regarding the I-130 petition contributed to the delay, it
erred.6

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as “fraudulent.” There is no support for this assertion; the record
reflects only that CIS believed the document had been altered and
was investigating its authenticity.
11
Because we have determined that the IJ’s decision to deny
the continuance constituted an abuse of discretion, we need not
reach Hashmi’s other arguments.
V.
For the reasons discussed above, we will grant the petition,
vacate the BIA’s decision and remand for further proceedings
consistent with this opinion.

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