USCA1 Opinion

March 7, 1996

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 95-2010

DENNIS ALEXANDER MARTIN,

Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

____________________

ON PETITION FOR REVIEW OF AN ORDER OF

THE BOARD OF IMMIGRATION APPEALS

____________________

Before

Torruella, Chief Judge,

___________
Cyr and Stahl, Circuit Judges.
______________

____________________

Linda A. Cristello on brief for appellant.

__________________

____________________

____________________

Per Curiam.
__________

Petitioner Dennis Martin

is a native

and citizen of Jamaica who legally entered this country as an

immigrant in June 1988.

Massachusetts

He

was convicted in April 1992 in a

Superior Court

intent to distribute.

Cause in July 1992

of possession of

The INS

cocaine with

then issued an Order to

based on his conviction of

Show

an aggravated

felony.

An

hearing in

an

immigration

attorney.

Deportability

held

deportation

was

conceded

and

Jamaica

for deportation purposes.

Counsel

asked for a continuance of 15 months so that petitioner

could accumulate the seven

for

(IJ)

April 1994 at which petitioner was represented by

designated as the country

then

judge

discretionary

1182(c).1
1

years required for an application

relief

Petitioner

would

under

212(c),

reach the

U.S.C.

seven-year mark

in

June 1995.

Although acknowledging the presence of

petitioner has a stammer

in

hardship --

which he alleges cannot be

Jamaica and his mother who lives

here is blind -- the IJ

____________________

1Section 212(c) provides in relevant part:

1

Aliens lawfully
resident [sic]

admitted for permanent

who temporarily proceeded

abroad voluntarily and not under an order

of deportation, and who are

returning to

a lawful unrelinquished domicile of seven

consecutive years, may be admitted in the
discretion of the Attorney General. . . .

-2-

treated

determined that there

was no cause

The

Board of Immigration

the

appeal when

to grant a

Appeals (BIA)

counsel failed

continuance.

summarily dismissed

to file

a brief,

and this

petition for review ensued.

Petitioner contends that the IJ should have granted

continuance

so

that

discretionary waiver.

continuance "for good

he

could

An

IJ

apply

may grant

cause shown."

for

8 C.F.R.

212(c)

motion for

3.29.

We

review the denial of

See
___

Baires v.
______

such a motion for abuse

INS, 856
___

support of

his position

that

statute of

as a

liberally construed

reopen

91 (9th

212(c) is

He then analogizes

in which the BIA held that

granted where

In

first argues

forgiveness,

in favor of aliens.

should be

Cir. 1988).

on review, petitioner

repose and

his situation to a case

to

F.2d 89,

of discretion.

an

alien has

a motion

filed an

application for adjustment of status contemporaneously with a

visa

petition.

See
___

Matter of Garcia,
________________

16 I. &

N. Dec. 653

(BIA 1978).

In Garcia, an IJ had ordered

______

alien

as an overstay.

proceedings

so that

The alien

he

the deportation of an

then moved

could apply

for

to reopen the

an adjustment

of

status pursuant to

245, 8 U.S.C.

1255.

Ordinarily, the

INS required a prima

facie showing that, in addition

to the

filing of an application for an adjustment, (1) the alien was

eligible

to receive an immigrant

visa and was admissible to

-3-

the U.S. for permanent

residence, and (2) an

immigrant visa

was

immediately
___________

available to
_________

him or

filed.

the

application

was

application

simultaneously filed

INS

deny

would

the

In

her

case

at the

of

an

with a visa

application

because

time the

adjustment

petition, the

the

visa,

by

definition, would not be immediately available.

However, an

for

changed the provision

dating the adjustment application.

amended

the

status

regulations

As a result, the INS

specifically

to

an

application

for

and a visa petition.

In Garcia,
______

simultaneous

that

amendment to the INA

filing

to continue

available

provision.

the

visas would

of

practice

of

nullify the

To give proper

permit

adjustment of

the BIA recognized

requiring

immediately-

new simultaneous

effect to this

the

filing

provision, then,

the BIA

decided that

proceedings unless

it would generally

(1)

reopen deportation

ineligibility was

apparent

record, or (2) the adjustment application would

on

the

be denied on

statutory grounds or as a matter of discretion, even were the

visa

petition

approved.

In

this

way,

the

adjustment

application would be retained until the INS ruled on the visa

petition.

We find

to reopening, the

approvable.

regard to

Garcia inapposite.
______

First,

to be entitled

alien's visa petition must

be prima facie

Petitioner's

his

application

attempt to

for a

-4-

make this

212(c)

showing in

waiver

fails.

According to him, the IJ opined

alleged would have

application.

been the basis for a

15

months to

relief was

"successful" waiver

However, the record does not reveal that the IJ

made such a statement.

of

that the hardship petitioner

enable petitioner

not a good

"understanding

Rather, she stated that a continuance

to

reason to grant

that there are --

apply for

212(c)

petitioner's motion,

[that] this may

be a case

where there are -- where

the [petitioner]

there is hardship.

has been convicted of

as he has admitted in his pleadings."

viewed

Unfortunately,

an aggravated felony

At most,

the case as possibly involving hardship.

________

definitely had

she still

then, the IJ

Even if she

determined the presence of hardship, however,

would need to balance the

humane factors favoring

relief against the adverse factors favoring deportation.

Matter of Marin,
_______________

16 I. & N. Dec. 581

See
___

(BIA 1978); Gouveia v.

_______

INS, 980 F.2d 814, 816 (1st Cir. 1992).

___

Second,

aggravated felon.

provides that an

as the

Indeed,

IJ pointed

the last

aggravated felon

out, petitioner

sentence

who has

is an

of

212(c)

served at

least

five years in prison is ineligible to apply for discretionary

relief.

Unlike the amendment to

212(c)

in

restrictive

regard

approach.

to

245, then, the changes to

aggravated

Further,

even

aggravated felon is entitled to make a

"it

is

incumbent upon

[such]

-5-

felons

where,

indicate

as here,

an

212(c) application,

petitioner

not

only

to

demonstrate that favorable

present

factors preponderate but also

'unusual or outstanding

for a waiver of excludability."

Without

this

deciding

case, we cannot say

to

equities' as a prerequisite

Gouveia, 980 F.2d at 816.

_______

whether such

equities

exist in

that the denial

of a continuance,

based in part on petitioner's status as an

aggravated felon,

was in

derogation of the intent

of

212(c).

Here, the IJ

refused a request to continue the proceedings for over a year

so that

relief.

Martin could

file an application

for discretionary

Given the length of time involved and the intent of

Congress to deport

aggravated felons with

relative dispatch

and to

in some circumstances,

opportunities for

deny them,

relief from

deportation, we

conclude

that the

IJ did

not

abuse her discretion in denying the motion for a continuance.

The

See
___

Local Rule

petition for

27.1.

The

review

is summarily

motion for

a stay

dismissed.

is denied as

moot.1
1

____________________

1The INS's denial of petitioner's motion for a stay may be

1
challenged

in a habeas corpus proceeding.

See, e.g., Dhangu

___ ____ ______

v. INS, 812 F.2d 455, 459 (9th Cir. 1987).

___

-6-