Gurinderpal Setia v. Eric Holder, Jr.

Gurinderpal Singh Setia petitions for review from the BIA’s dismissal of his appeal from the denial of his application for asylum by an immigration judge (IJ). We grant the petition in part, deny in part, and remand.

1. We deny the petition insofar as it attacks the merits of the denial of asylum. The IJ’s adverse credibility finding was *348 properly supported by detailed findings. See De Leon-Barrios v. INS, 116 F.3d 391 , 394 (9th Cir.1997). Moreover, substantial evidence supports the IJ’s determination that Setia was not mistreated because of his political opinion. See INS v. Elias-Zacatrias, 502 U.S. 478, 483-84 , 112 S.Ct. 812 , 117 L.Ed.2d 38 (1992).

2. A remand is required, however, for further consideration of Setia’s motion for a continuance. An immigration judge “may grant a motion for continuance for good cause shown.” 8 C.F.R. § 1003.29 . The IJ denied Setia’s request for a second continuance because “this case has been pending ... almost three years,” “it is not clear that [Setia’s 1-140 visa] priority date will be current anytime soon,” and Setia’s “accrued illegal presence.”

3. The BIA affirmed. Its sole ground for doing so was that, because Setia “does not have…

dissenting in part:

An alien is prima facie qualified for an adjustment of status if he is eligible to receive an immigrant visa and is admissible to the United States for permanent residence — and—such visa is immediately available at the time of the filing of the application. 8 U.S.C. § 1255 (i)(2). While an alien is not “required” to show prima facie eligibility to merit a continuance, see Ahmed v. Holder, 569 F.3d 1009, 1015 (9th Cir.2009), an Immigration Judge may consider lack of immediate visa availability when exercising his discretion to determine whether a continuance is appropriate in that particular case. See In re Hashmi, 24 I. & N. Dec. 785, 790 (BIA 2009); see also In re Rajah, 25 I. & N. Dec. 127, 136 (BIA 2009) (“A respondent who has a pri-ma facie approvable 1-140 and adjustment application may not be able to show good cause for a continuance because visa availability is too remote.”). Thus, I would deny the petition in full.

FILED

NOT FOR PUBLICATION DEC 31 2014

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

GURINDERPAL SINGH SETIA; No. 11-71390

MANMEET KAUR SETIA; HARDEEP

SINGH SETIA; HARPREET SINGH G Agency Nos. A097-125-559 SETIA, A097-125-560

A097-125-561

Petitioners, A097-125-562

v.

MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted December 9, 2014 Resubmitted December 19, 2014 San Francisco, California

Before: O’SCANNLAIN, FISHER, and HURWITZ, Circuit Judges.

Gurinderpal Singh Setia petitions for review from the BIA’s dismissal of his

appeal from the denial of his application for asylum by an immigration judge (IJ). We

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. grant the petition in part, deny in part, and remand.

1. We deny the petition insofar as it…